Why is Fair Use Good for Authors?

Posted February 25, 2015

Authors Alliance Co-Founder Pamela Samuelson

Authors and artists rely on copyright’s doctrine of fair use far more than they may realize. February 23-28 is Fair Use Week this year, so it’s a good time to think about when and why fair uses benefit authors. (Fair uses of copyrighted works are not infringements; here’s a link to the Authors Alliance FAQ about fair use.) Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.

The preparatory phase of creative work often involves making and being surrounded by fair use copies of materials that contain the information or inspiring words or images that the author/artist needs as raw materials. Sometimes authors search through large numbers of documents or other works to find the exact words or images that they need to prove or illustrate a point they want to make or to set context for the story they plan to tell. Often, the perfect source can only be found by scouring through reams of material, selecting from this a relatively small number of candidates for the use, and then as they create the work they have in mind, figuring out which is the right quote or image to use and where exactly to place it. Fair use copying is an integral part of this phase of the creative process.

An author or artist’s final product—the one he or she will choose to commercialize or to make available on an open access basis—will often contain some text or images drawn from others’ works, building upon what came before, and offering up to a new audience a work. That new work may commence a cycle of social dialogue among works of authorship in the ongoing enterprise of creative work.

Authors can sometimes rely on fair use to support their inclusion of others’ materials in their follow-on works, especially in nonfiction creations. Uses are typically fair when an author takes only as much from another author’s work as is reasonable in light of that author’s purpose and the use does not supplant demand for the other author’s work. When an author wants to take more from another author’s work than is reasonable for an identifiable purpose, it’s the right thing to do to ask the other author’s permission and license the material for inclusion in the later author’s work.

Once an author’s creation becomes publicly available, reviewers may decide to quote from that work to comment on its style or substance, whether with praise or criticism or a bit of both. Fair use quotations and the like benefit not only the authors of the commentary, but also the authors whose works are being reviewed. Prospective readers are more likely to seek out the original work to judge for themselves whether the praise or criticism is warranted. Fair use commentary can beget further fair use commentary. Fair use may be part of the grease that keeps the commentary going on for some time. I don’t adhere to the view that there’s no such thing as bad publicity, but sometimes an author’s worst enemy is obscurity.

If and when an author’s work becomes popular, he or she may benefit from fair uses that others make of their works. Private acts of sharing can draw new fans to an author’s works. (I, for example, regularly buy new music after my brother sends me a copy of a CD of music he thinks I’ll like; on occasion, I forward articles to colleagues I know who will want to see them.) Fan fiction fair uses pay homage to creations fans build on. Fair use remixes and mashups allow new generations of creators to participate in the ongoing evolution of the cultural landscape in which they live. Academic authors are typically pleased when colleagues make fair uses of their works, as when assigning them as readings to their students or sharing copies at professional meetings.

Fair use can be important to authors in the mid- and later lives of their works as well. Authors and artists will almost always want to have fair use copies of their works for portfolio purposes, even when they have assigned copyrights to publishers. It is a sound practice to keep some fair use copies of one’s work to share with future clients. Authors whose professional responsibilities include writing will need to have fair use copies of their works to get hired or promoted. Authors and artists may want to maintain or authorize others to preserve and maintain archival copies of their works over time.

Libraries, museums, and archives may possess copies of large numbers of creative works. Their cultural mission is to preserve cultural heritage and ensure availability and public access to the works over time. It may be in the long-term interests of authors that their intellectual legacies live on through the preservation and access efforts of these cultural stewards. The main reason that the Authors Alliance supported Google’s fair use defense in the lawsuit brought by the Authors Guild challenging Google’s scanning books from research library collections and serving up snippets of texts from those works in response to search queries is that our members want our works to be discovered, and Google Book Search helps with that discovery process.

Fair use is so intimately related to our day-to-day work as authors that it can often fall out of view. It’s important to remember that it’s part of what allows our creative system to flourish, whether or not it happens to be Fair Use Week.