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What is the Connection Between Copyright Law and Fair Use?
The connection between copyright law and fair use practices typically depends on the copyright laws of a given country or area. In general, however, fair use is an aspect of copyright laws and may be either explicitly or implicitly indicated by those laws. Copyright laws in the US, for example, indicate a number of parameters used to determine when fair use of a copyrighted work has been made, rather than infringement upon a legal copyright.
Copyright law and fair use practices are both generally outlined in the various laws and court cases that have established fair usage in the US. A copyright is a form of legal ownership over a particular work of art or creation, often protecting that work from unapproved use or recreation by others. Fair use refers to the usage of a copyrighted work, usually without the permission of the copyright owner, that is not considered in violation of that copyright. This means that copyright law and fair use laws are closely connected, though fair use is not necessarily a loophole in copyright protection.
There are typically a number of ways in which copyright law and fair use practices are established and governed within a country. In the US, for example, copyright laws have largely been established through a number of different laws and upheld or modified through various court cases. These cases and laws have established how a copyright is created, who owns that copyright, how long it lasts, and how others may legally use the copyrighted work. Copyright law and fair use practices in the UK have been established and defined by the Copyright Designs and Patents Act of 1988; fair use, or fair dealing, laws in the UK could, therefore, be different than in the US.
In many countries there is no precise and clearly evident way to ensure that a work is being used through fair use practices, rather than infringement, though there are some guidelines. If a work is being used for nonprofit educational purposes by a teacher or student, is used only in part, and is not used in a way that affects the commercial viability of the work, then it is likely being used fairly, depending on the nature of the work. Copyright law and fair use practices are strongly intertwined, since one often defines the other, but since such laws depend on particular countries, care should be taken by anyone using a copyright to ensure fair use practices are upheld.
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Discussion Comments
@browncoat - I don't know if it's a good idea to avoid all mentions of popular culture in novels though. My sister was quite taken with the mentions of modern art and literature in the novel "A Fault in Our Stars" and I would call that fair use.
It can be scary, but it's not impossible to navigate the waters of copyright law if it's worth it to the book.
@irontoenail - Usually if I have to use song lyrics in a fictional work, I do something like have the narrator refer to the song without actually quoting it.
I don't like the use of stuff like that in fiction anyway, because I think it dates it too quickly. You can't possibly know if a modern song is going to be well known ten years from now.
The same thing goes for companies. You can just call something a generic fast food place without mentioning a real name. If you do mention a real name they can sue you for libel if they don't like what you say.
This question tends to get asked a lot in my writer's forum, particularly when people want to use song lyrics or quotes from other books in their work. Basically, with song lyrics, you should use them as little as possible. Fair use doesn't really cover any of a song's lyrics, which is why film makers have to pay a huge amount if they want to use the "Happy Birthday" song in their movies (I've heard it's upwards of $40,000).
If you do include lyrics in your book, it means the publisher is going to have to seek permission for the use, which might turn out to be OK and might not, so it's better to just avoid it altogether, particularly when you're a new writer.
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