How a Shortcut Can Lead to a Long Road

Posted on October 21, 2014 in IP & Social Media

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Life is short. Time is limited. So when you see that someone has phrased something “just right,” can you take it?  Even just a wee snippet? Aw, c’mon!

I came across the example of a consultant who wanted to use song lyrics in publishing her book. The U.S. Copyright Office said “ask for permission.”  A smart, safe, standard answer. But the consultant came upon one of those gray, somewhat subjective areas in the law called “fair use.” Many people interpret that to mean that if you take only a tiny bit, it’s OK.

It’s not.  Whether a use is, legally, a “fair use” depends on a number of factors:

1. What’s the purpose of the work–does it try to supersede the original?
2. What’s the nature of the work you’re taking–fact or fiction?
3. How substantial is the portion you’re taking (note that “substantial” doesn’t just mean “amount”; it could mean a key phrase or concept that connects people to the work–like riffs in music sampling or recognizable song lyrics).
4. What’s the effect on the market for the original work–and can the connection of your product to the work diminish the value of the original work?

Safest strategy is to ask for permission.  If the tables were turned, wouldn’t you want the courtesy of someone asking you for permission to use your work? And bear in mind that it may not just be “little ol’ author” looking out for infringement (in which case, you may be tempted to think you’ll fly under the radar). That “little ol’ author” could be represented by a major publishing house or agency, in which case you’ve not crossed the line with a mouse–you’ve crossed the line with a mammoth.

Consider, too, what you might be getting yourself into:

• Sued for copyright infringement
• Have to destroy all copies of the infringing work without compensation
• Pay damages to the original author
• Pay attorney fees
• Redo the work so that it no longer contains the infringing items

If you’re determined to proceed, consult with an intellectual property specialist to more closely evaluate your risks of getting embroiled in litigation. Otherwise, you could find that that little ol’ shortcut is going to lead you down a long, expensive road.

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