I get a lot of questions about the “fair use” doctrine. These questions may come from someone simply curious about how certain businesses “get away” with using someone else’s copyrightable works or questions about how to develop a business model that uses portions of copyrightable works. Before we dive into the discussion, let’s get a definition of “Fair Use” out of the way.
“Fair Use” is the permissive use of a Copyrighted work within the fair use limits that are permitted in the statute. A four factor test is used to determine if the use of a Copyrighted work is “Fair Use” or an infringement. The factors are:
- How the work is used (e.g. for commerce or for education)
- The type of work
- How much of the work is used
- The effect on the value or market of the work
It is not a clear definition, and you should only consider using a Copyrighted work without permission if it is clear the intended use is, in fact, “Fair Use”.
For today’s discussion, let’s take a look at an online business that provides actionable book summaries to some of the most popular business books today. All book summaries are available for free. Some require an email subscription (so there is an exchange of value, but not of money). The real business is in selling workshops that pull concepts from these books and create interactive workshops for team development.
The question is, how can you do that?
Well, it depends on several things. It is certainly walking a thin line between creating derivative works (like we talked about a couple of weeks ago) of the original books and creating an original work based on an idea that is proposed in a book.
So, if we apply the test, we will see that:
- The work is used for commerce. The Business is selling a product that is built upon the work. The work, however, is only the foundation behind the idea, not the idea itself.
- The work is a novel that is clearly an original work and has copyright protection.
- The business claims to pull only one actionable idea out of the original work and extrapolate how that may apply to modern business. By the description, not much, if any, of the work is used.
- The publishing of these book summaries may cause some not to purchase the book as they are focused on the one actionable item, but if the summary strikes a cord with a reader, it will likely cause the reader to want to know more and the only way to do that would be to purchase the original work. That means, the impact on the value of the work would be to increase it.
It is possible that by using the book title, attributing the work to the original author, making it clear that the actionable advice comes from the author on the site and not the original author, and giving away the summaries for free that the use of the original work would be considered fair use even though there is a business model focused around actionable steps from copyrighted materials.
On the other hand, if the book reviews are being sold (and money is received specifically for the review) then it might not be fair use and it may even be considered a derivative work of the original (like Cliff’s Notes or Spark Notes) and a license may be required. But, if the summaries are given away and the workshops are simply focused on exploring ideas taught in books, it is likely that the use of the summaries and the business ideas might fall into fair use as it is more of a commentary on the original work than a work derived from the original work. Commentary is almost always considered fair use.
The point in looking at this particular business model and whether it is fair use is that it is important to look at the intellectual property rights of others to determine whether you are infringing in your business model. In our litigious society, it isn’t always about knowing you are within your rights, but you must also be able to explain them in a way that makes conflicts go away before they start. So, when you are in the planning stages, it is always important to consider how your business model may be impacted by the rights of others.
If you are considering a business model that involves the intellectual property of others, you may want to consider seeking permission before you begin. Permission from an author may be easy to come by (and could be free). It would also be a good way to test whether you will have trouble down the road depending on the reaction at the time of your request. Of course, it may also put your use of their work on the radar, which could also be problematic.
A good example of this would be Weird Al Yankovich, who apparently asks for permission from each artist before he creates a parody of their work. This came to light on his last album when Lady Gaga refused to grant permission, but he published his parody anyway. Parody is always fair use, he just considers it polite to ask.
It is always important to weigh the potential consequences against the ease of reaching out, but an ounce of prevention could go a long way if you are building your business around the intellectual property of others.