Category Archives: Fair Use

Revisiting Georgia State: Fair Use and Academic Incentives

Posted March 1, 2018

What effect does fair use have on incentives to create? For some academic authors, there is growing evidence that fair use will not diminish, and may even enhance, their incentives to create and distribute scholarly works because it promotes their goals of advancing the progress of knowledge, builds reputational capital, and increases the impact of their works.

Last year, Authors Alliance filed an amicus brief with the Eleventh Circuit in support of Georgia State University’s fair use defense in Cambridge University Press v. Becker. One issue we discussed in our brief is how our members’ experiences accord with the district court’s conclusion that academic authorial incentives to create scholarly book chapters would not be impaired by a fair use ruling. We explained that the primary motivation of academic authors to write scholarly book chapters is generally to share the knowledge and insights they have gained, and the type of reward that academic authors have generally sought and hoped to attain through writing scholarly book chapters is enhancement of their reputations.

Our brief highlighted quotes from several authors of book chapters at issue in the case who reflected on the benefit of fair use to their goals of reaching readers and contributing to academic discourse. For example, Norma Mertz, Professor of Higher Education Administration at University of Tennessee, Knoxville, wrote “I have no objection to the fair use of chapters from my books. Indeed, I find the suit to prevent use of such chapters a serious hindrance to the advancement of knowledge.” Other authors pointed to the benefits of publishing academic works. Douglas Harper, Professor Emeritus of Sociology at Duquesne University, wrote “There is reputational benefit… to doing this work. … The point of this work is to share it!”

A subsequent survey of authors conducted by Brandon Butler and David Hansen reinforced these observations about academic authors’ incentives to create. Butler and Hansen wanted to test the hypothesis that most academics expect their work to be used freely for teaching, partly because academic authors make such uses themselves. They surveyed the authors affected by Georgia State litigation—primarily academic authors whose works had been excerpted by GSU professors in support of their teaching. Their results, although based on a small sample size, suggest that academic authors expect that their works will be used for educational purposes; indeed, many of them make such uses of others’ works as well, and are not highly incentivized to write by copyright restrictions or the promise of royalties.

As Hansen and Butler write in their survey analysis, “Authors faced with a publishing contract that includes a copyright transfer or license should consider whether they trust the publisher to enforce those rights in ways consistent with academic values and expectations.” This and other issues of interest to those considering publication options will be addressed in our forthcoming guide to publication contracts. The guide will be the fourth volume in our series of educational handbooks—stay tuned for a release later this year.

In the meantime:

Newly Updated: Fair Use FAQ

Posted February 28, 2018

Fair use has always been a key issue for Authors Alliance. When we launched in 2014, we created a Fair Use FAQ to help authors navigate this complex topic. Now, to celebrate Fair Use Week and our recently published guide to Fair Use for Nonfiction Authors, we’ve expanded and updated the FAQ to provide a comprehensive summary of key points. Read on to learn more!

  1. What is fair use anyway?
  2. What does it mean to say a use is “transformative”?
  3. What does it mean to say a use is “non-transformative”?
  4. Can I still claim fair use if I am using copyrighted material that is highly creative?
  5. Can I still claim fair use if I am using copyrighted material for commercial purposes?
  6. Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?
  7. Can I still claim fair use if I want to use copyrighted material that is unpublished?
  8. Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?
  9. How does a work’s copyright status affect fair use?
  10. How does a work’s orphan work status affect fair use?
  11. Can contractual terms governing access to a work restrict the availability of fair use?
  12. Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?
  13. What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?
  14. Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?
  15. Is fair use really as unpredictable as some people say?
  16. What if there is no on-point best practice guide for me?
  17. Where can I learn more?

What is fair use anyway?

In U.S. copyright law, fair use is a use of a copyrighted work that does not infringe the exclusive rights that the law confers on authors and other rights holders.

Section 107 of the U.S. copyright act identifies four factors that courts should consider in determining whether a use is fair or infringing:

  1. The purpose and character of the challenged use;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the challenged use; and
  4. The harm the challenged use is likely to cause to the market or potential market for the work.

No factor is dispositive; all must be weighed together.

Uses for criticism, commentary, news reporting, research, scholarship, and teaching are identified in the statute as examples of favored uses. Noncommercial uses are generally more likely than commercial uses to be fair. Transformative uses are also more likely than non-transformative uses to be fair.

The scope of fair use tends to be somewhat broader for fact-intensive works, especially when done for one of the favored purposes.

A good shorthand way of considering whether a use you want to make of another’s work will be fair is whether the amount you borrowed from the other’s work is reasonable in light of your purpose and unlikely to supplant demand for purchase of the original.

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What does it mean to say a use is “transformative”?

A use will be considered “transformative” if it:

  1. Actually transforms expression in the work, as a parody of a song might do;
  2. Is included in a new work of authorship, as quoting from the writings of a person in a biography;
  3. Is used for a different purpose than the original, causing it to have a different meaning, as when a newspaper publishes a photograph that has become controversial.

Transformative uses will not always be fair. A new arrangement of a song, for instance, may well infringe the derivative work right. But especially when done for purposes of criticism or commentary, the transformativeness of a use will tend to tip in favor of fair use.

Courts have recently been receptive to the idea that copyright owners do not have the right to control all transformative uses of their works. Transformative uses are less likely than non-transformative uses to pose a risk of supplanting market demand for a work.

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What does it mean to say a use is “non-transformative”?

A use will be considered “non-transformative” if it is, for example, an exact copy of a work or part of a work. Making a time-shift copy of a television program is an example of a non-transformative use that courts have deemed fair. Posting a chapter of a book on an electronic course reserve system is another example of a non-transformative use. (The Cambridge University Press v. Becker case, which is presently pending before an appellate court, is testing whether this kind of use is fair.) Scanning a photograph you like and posting it online is a third example of a non-transformative use.

Non-transformative uses may be and often are fair uses, but they are somewhat less likely to be fair uses insofar as they pose a stronger risk of harming the market for the work. If someone makes a copy of a movie or computer program, for instance, instead of buying a copy of his own, that non-transformative use is more likely to have a negative effect on the copyright owner’s market. Even though one person’s peer-to-peer file-sharing of music or a movie would seem to be relatively trivial, courts take into account that if they say this use is fair, then many others will do the same thing and the aggregation of these uses are likely to cause market harm.

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Can I still claim fair use if I am using copyrighted material that is highly creative?

Yes. While courts do consider whether the copyrighted material used is primarily factual or creative under the second factor, “the nature of the work,” this factor is rarely decisive on its own. Courts still must weigh all four factors, including the “purpose of the use.” Where the purpose of the use is transformative, such as when a nonfiction author comments on copyrighted material or uses copyrighted material to support a point, and the amount used is reasonable, the second factor rarely affects the final outcome of fair use cases.

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Can I still claim fair use if I am using copyrighted material for commercial purposes?

Yes. While “noncommercial” uses may be a plus in a fair use analysis, there are no categorical rules: Commercial uses can be fair use, and not all noncommercial uses will be fair use. In fact, some of the important court victories for fair use over the past two decades have been won by defendants whose activities were commercial, including musicians, publishers, and artists who sell their work (sometimes at substantial prices).

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Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?

Yes. You do not have to ask permission or alert the copyright holder when a use of materials is protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims. In fact, the Supreme Court has said that asking for permission may be a good faith effort to avoid litigation.

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Can I still claim fair use if I want to use copyrighted material that is unpublished?

Yes. Congress amended the Copyright Act in 1992 to explicitly allow for fair use when using unpublished works after several court decisions suggested that the use of unpublished materials would rarely be fair use. Under current copyright law, the fact that a work is unpublished “shall not itself bar a finding of fair use if such finding is made upon consideration of all the [fair use] factors.”

While a court may still consider a work’s unpublished status to weigh against fair use when evaluating the “nature of the work,” this factor is rarely decisive on its own and courts still must weigh all of the fair use factors, including the purpose of the use. The purpose of the use may weigh against fair use if the unpublished material is being used in a frivolous or exploitative manner. On the other hand, the purpose of the use may weigh in favor of fair use if the unpublished material transforms the original material (by, for example, using the original material as the object of criticism or commentary) and contributes to the public’s interest in advancing knowledge.

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Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?

Charts, graphs, and tables may be protected by copyright, but the underlying facts are not copyrightable. Creative choices in the way that facts are presented in a chart, graph, or table may be sufficiently original to warrant copyright protection. That said, where applicable, you may still be able to rely on fair use to use a chart, graph, or table that includes expressive elements.

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How does a work’s copyright status affect fair use?

Copying of works that are not protected by copyright is not copyright infringement, regardless of fair use. But sometimes it can be difficult to determine whether a work is protected by copyright. For example, you may not be able to determine whether a work’s copyright has expired, or you may not be sure whether a scientific chart has the requisite level of creativity to warrant copyright protection. Even where you cannot determine a work’s copyright status, you may still want to understand whether the use of the material would be permitted by fair use should the material be protected by copyright. In fact, in some cases determining whether the use would be permitted by fair use may be easier than resolving the work’s copyright status.

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How does a work’s orphan work status affect fair use?

Orphan works are works for which it is difficult or impossible to identify or locate the work’s copyright owner, even after a diligent search. The use of an orphan work may be permitted by fair use, just like any other work. In fact, orphan works often have characteristics that make fair use more likely. For example, orphan works are by definition not active in the market, limiting any resulting economic harm to rightsholders. In some cases, determining whether the use of an orphan work would be permitted by fair use may be significantly easier than securing permission from a rights holder that, by definition, is difficult or even impossible to track down.

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Can contractual terms governing access to a work restrict the availability of fair use?

Yes. For example, some archives, museums, and commercial collections that control access to works place contractual restrictions on the use of those works, even when use of the work would otherwise be permitted by fair use (and, in some cases, even when the work itself is in the public domain!). This is beginning to change, and some archives and museums have already abandoned these practices. However, if you are a party to such a contract, your ability to use materials you’ve accessed may be limited by the terms of the contract. For example, a biographer who accesses her subject’s personal papers through an archive may find that, as a condition of accessing those materials, the subject’s estate forbids quoting from the materials without the express permission of the estate. Similarly, an art critic may find that he has agreed to terms governing the use of photographs he accessed through an online archive.

At least some courts have held that such contracts may be enforced, even if the restricted use would be fair use as a matter of copyright law. In these cases, nonfiction authors cannot rely on fair use since demands for permission in this context are based on contractual claims, not copyright. As such, nonfiction authors should pay careful attention to the conditions of access to source materials and may want to consider negotiating for better terms that do not restrict their research and writing goals.

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Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?

No. Some estates are notoriously aggressive in trying to prevent the use of materials to which they own the copyrights. However, just because a copyright owner is forceful in asserting copyright claims doesn’t make fair use any more or less likely. It may, however, change your assessment of the practical risk that a copyright owner might complain or sue. Authors in this situation may be especially interested in obtaining errors and omissions coverage prior to publicizing their work.

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What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?

Some publishers may require that authors get permission to use copyrighted materials in their works instead of allowing them to rely on fair use. If you find yourself in this situation, you may find it helpful to ask your publisher to reconsider its position and to explain why you think your intended use is protected by fair use. You may also want to share with them related codes of best practices, if relevant. If fair use is important to you or essential to your project, you may want to search for a publisher that recognizes fair use before signing a publishing contract.

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Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?

No. Fair use is a limitation on exclusive right under copyright and does not apply to other legal claims. When using third party materials, authors should consider legal issues beyond copyright, such as contractual restrictions, privacy rights, trademark law, right of publicity, and defamation; and community norms, like rules against academic plagiarism.

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Is fair use really as unpredictable as some people say?

It is sometimes said that fair use is unpredictable. Larry Lessig, for instance, spoke of fair use as “the right to hire a lawyer.” For some people, this perception of unpredictability has a chilling effect (that is, they are unwilling to take the risk that the use will be held unfair).

To provide guidance, the Center for Media and Social Impact at American University has published some “best practices” guidelines to help people become more comfortable with making fair uses, including one for documentary filmmakers and one for user-generated video content (remixes and mashups). The Center for Media and Social Impact has published a template to help users in particular communities to form their own best practices guidelines.

The “best practices” approach is catching on.  In fact, Authors Alliance published a guide to Fair Use for Nonfiction Authors, which features guidance based on a meta-analysis of existing best practices guides.

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What if there is no on-point best practice guide for me?

Even if no best practice guidelines exist for your community, it is worth knowing that there is more predictability in the fair use caselaw than some have suggested. As noted above, a use is likely to be fair if done for a purpose such as criticism, comment, news reporting, scholarship, teaching and research as long as what you take from another’s work is reasonable in light of your purpose. Here are some examples:

  • Quoting small amounts of text (8% or less) from each of 25 writings in a critical biography of L. Ron Hubbard was held a fair use in New Era Publications Int’l ApS v. Carol Publishing Group in 1990.
  • Reproducing seven posters in significantly reduced sizes that had once advertised Grateful Dead concerts in a 480 page book on the cultural history of the band was held to a fair use in Bill Graham Archives v. Dorling Kindersley in 2006.
  • Preparing a reference work about the characters, plot, and special features of fictional works was held to be fair use in Warner Bros. Entertainment v. RDR Books (although RDR had to change some places where there was very close paraphrasing of passages from Harry Potter novels) in 2008.
  • Scanning student papers into a database designed to detect plagiarism was held fair use in A.V. v. iParadigms in 2009.
  • Retelling the story of Gone With the Wind from the vantage point of a slave was held a fair use in Suntrust Bank v. Houghton Mifflin Co. (However, an unauthorized sequel to Catcher in the Rye, imagining Holden Caulfield as an old man, was held unfair in Salinger v. Colting. Sequels, in general, are likely to be considered infringing derivative works. One reason the use was fair in Suntrust was because of it was a critical commentary on the original and the Mitchell estate made clear it would never have licensed this kind of use of the famous novel.)

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Where can I learn more?

For further reading on fair use, we recommend:

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Amanda Levendowski on Fair Use for Fairer AI

Posted February 27, 2018
illustration on fair use by Gary Zamchick

Illustration courtesy of Gary Zamchick | Used with permission

The principles of copyright law sometimes have a way of appearing in unexpected places. Recently we featured an article by Christopher Sprigman that examines assumptions about copyright as a spur to creativity by considering examples as diverse as Italian opera and Bollywood movies.

Today, as part of Fair Use Week, we are highlighting new research by NYU Clinical Teaching Fellow Amanda Levendowski that explores the ways in which copyright law can negatively influence the quality of artificial intelligence (AI), and how fair use might be part of the solution. She describes how there has been an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing.

As the computer science adage “garbage in, garbage out,” succinctly puts it, an AI system is only as good as the information provided to it. Training using biased or otherwise unsatisfactory data can result in flawed and incomplete outcomes. As Levendowski writes, “[J]ust as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. … The rules of copyright law…privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased.”

With potential statutory damages running as high $150,000 per infringed work, AI creators often to turn to easily available, legally low-risk works train AI systems, often resulting in what Levendowski calls “biased, low-friction data” (BLFD). One such example is the use of the “Enron emails”, the 1.6 million emails sent among Enron employees that are publicly available online, as a go-to dataset for training AI systems. As Levendowski puts it, “If you think that there might be significant biases embedded in emails sent among employees of [a] Texas oil-and-gas company that collapsed under federal investigation for fraud stemming from systemic, institutionalized unethical culture, you’d be right: researchers have used the Enron emails specifically to analyze gender bias and power dynamics.”

What’s more, Levendowski describes how copyright law favors incumbent AI creators who can use training data that are a byproduct of another activity (such as the messages and photos Facebook uses to train its systems) or that it can afford to purchase. This can play a determinative role in which companies can effectively compete in the marketplace.

So how can we fix AI’s implicit bias problem? In her article, Levendowski argues that if we hope to create less biased AI systems, we need to use copyrighted works as training data. Happily, copyright law has built-in tools that help to balance the interests of copyright owners against the interests of onward users and the public: One of these tools is fair use. By examining the use of copyrighted works as AI training data through the lens of fair use cases involving computational technologies, Levendowski suggests that relying on fair use to use copyrighted materials in training systems could provide a promising path forward to combat bias and make AI more inclusive and more accurate.

Read the full article on SSRN; and learn more about Levendowski and her research on her website.

Amanda Levendowski is a Clinical Teaching Fellow with the NYU Technology Law and Policy Clinic. Her clinical projects and research address how we can develop practical approaches to digital problems. Amanda previously practiced copyright, trademark, Internet, and privacy law at Kirkland & Ellis and Cooley LLP.

Guide to Fair Use for Nonfiction Authors Now in Print!

Posted February 26, 2018

Authors Alliance handbooks

In celebration of Fair Use Week, we are pleased to announce the print release of our guide to Fair Use for Nonfiction Authors.

This past fall, we published the guide as a digital file under a Creative Commons license with the goal of putting it in reach of anyone who might need it. You can find a free download of the guide on our fair use resource page.

But digital can’t reach everyone, and many of us find paper resources easier to read and navigate. For everyone with a preference for paper, and for those who want to support Authors Alliance’s continuing non-profit mission, Fair Use for Nonfiction Authors is now available as a handsome softcover book. After joining or donating, purchasing a guide from us is one of the best ways to stand behind our organization. Buy one today from our store and we’ll throw in some Authors Alliance stickers.

“I’ve read and reviewed many explanations available about fair use for the creators of nonfiction works. This is—by far—one of the best. Do not waste any time before you start reading and digesting the sections that pertain to the kind of nonfiction work you are creating, whether it is a written work or an audio-visual work.  Every category of such works can benefit from the ability to use material pursuant to the doctrine of fair use.”
—Michael Donaldson
Founding Partner, Donaldson + Callif

To make your Authors Alliance reference library complete, Understanding Rights Reversion and Understanding Open Access, the first two volumes in our series of guidebooks, are still available via free digital download as well as in book format from our store.

Authors Alliance Presents Workshop on Fair Use at California Lawyers For the Arts

Posted February 8, 2018
photo of sharpened pencil and notebook

photo by Angelina Litvin on Unsplash

On Tuesday, February 13, Brianna Schofield of Authors Alliance will team up with Robert Kirk Walker of the Samuelson Clinic at the UC Berkeley School of Law to present a workshop on fair use with California Lawyers for the Arts. The workshop, “Demystifying Fair Use: A Crash Course For Authors”  will provide an overview of the law of fair use, explain best practices for fair use as developed by creative communities, and showcase our new guide to fair use for nonfiction authors.

The workshop is open to the public, and will take place at 7:00 pm in downtown Berkeley. For more information and to register, click here.

Authors Alliance Comments in Support of Modified Exemption to Section 1201 of the DMCA

Posted December 19, 2017
photo of CD with padlock

photo by 422737 |CC0

Earlier this week, Authors Alliance submitted comments to the Copyright Office in support of a modified exemption to Section 1201 of the DMCA for multimedia e-books. The proposed exemption would allow all authors to access the clips they need to make fair use of video clips in their e-books. These comments were submitted as part of the seventh annual triennial rulemaking process for 2018, with the goal of building on the success of our previous efforts to advocate for fair uses of copyrighted content.

2017.12.18 Multimedia E-Books Modification Long Form Comment AuAll AAUP ...


As we wrote in the comment, “Electronic books continue to represent a well-utilized form of authorship that becomes more dynamic when multimedia elements are added. With modern technology, authors are now able to incorporate audiovisual content directly into their e-books for lawful fair use purposes. Multimedia e-books allow a unique experience not possible through simple static text and visuals. By allowing authors to embed non-static forms of content into e-books, multimedia e-book technology empowers authors to conduct scholarship, express new ideas, facilitate rich discussion, educate others, engage in creative expression, and share research and findings in a way that mere prose cannot.”

We also joined with EFF, New Media Rights, the Organization for Transformative Works, the American Library Association, the Association of Research Libraries, and the Association of College Research Libraries on a comment in support of one clear, easier-to-use exemption for video excerpts that would allow authors, educators, libraries, documentary filmmakers, remix artists, and others to use video snippets without fear of legal repercussions by copyright owners. The comment is available here.

We will continue to track the status of these proposed 1201 exemptions and to provide updates as the rulemaking process moves forward in 2018.

Demystifying Fair Use: Our New Guide, FAQs, and More!

Posted December 7, 2017

Fair use, as many of our readers know, can be a tricky concept to pin down. What exactly does fair use mean? What makes it such an important part of U.S. copyright law? What are the “four factors” that courts consider when evaluating claims of fair use? And, perhaps most importantly of all, how does fair use support authors’ research, writing, and publishing goals?

Authors who want to incorporate source materials with confidence, while also respecting copyright and the integrity of their fellow creators, may find themselves faced with more questions than answers. Fortunately, help is at hand!

Cover of the Fair Use Guide for Nonfiction AuthorsAuthors Alliance released a brand-new guide to Fair Use for Nonfiction Authors last week. Although the guide was designed around the needs of nonfiction authors, much of the information applies to authors across disciplines. After all, many questions and misconceptions about fair use overlap regardless of genre. The FAQ section of the guide addresses some common questions, such as:

  • Can I still claim fair use if I am using copyrighted material that is highly creative?
  • What if I want to use copyrighted material for commercial purposes?
  • Does fair use apply to copyrighted material that is unpublished?

Learn the answers to these and other fair use questions at our new Fair Use Resources page. While you’re there, you can also download a PDF version of the guide. A print edition is forthcoming in February 2018, and Authors Alliance members can sign up for the pre-order list by emailing us at

If you’re not yet a member, we encourage you to join today! And if you value this and other Authors Alliance resources, please consider a donation to support our 2017 gift campaign.

Announcing the Authors Alliance Guide to Fair Use for Nonfiction Authors

Posted November 29, 2017

Cover of Fair Use for Nonfiction AuthorsWe are pleased to announce the release of our brand-new guide to Fair Use for Nonfiction Authors! The guide is designed to empower authors to exercise their right to use source materials to further their research and writing goals by helping them to make confident fair use decisions. This new guide is the latest addition to our growing library of resource books for authors, which includes educational guides for rights reversion and open access.

Inspired by the work of Peter Jaszi and Patricia Aufderheide at the Center for Media and Social Impact at American University, this guide focuses on best practices for nonfiction authors—from biographers to science writers, historians to literary critics, memoirists to academics, and beyond—who depend on the use of copyrighted materials in their work.

The guide will help nonfiction authors who want to do things like:

  • Include song lyrics in an academic paper discussing musical trends;
  • Quote from a novel to analyze the author’s use of metaphors in a work of literary criticism;
  • Incorporate a photograph in an article about the photographer’s use of light and shadow;
  • Use a chart in a scientific paper critiquing a researcher’s methodology and findings; or
  • Quote from unpublished letters in a memoir.

The guide addresses three common situations faced by nonfiction authors in which fair use may apply: 1) criticizing, discussing, or commenting on copyrighted material; 2) using copyrighted material to support a point made in the author’s work; and 3) using copyrighted material for non-consumptive research.  It also addresses the most frequently asked questions about fair use and clears up some common misconceptions about when it might apply.

We thank Rob Walker and the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law for their help in researching and drafting the guide, which features extensive input from nonfiction authors, copyright experts, and partner organizations. The guide has also been endorsed by the American Council of Learned Societies and the Association for Information Science and Technology.

Download the guide and learn more about fair use at our new Fair Use resource page. And, if you have any fair use questions or experiences to share with us, please get in touch at


DMCA Exemptions: We Want To Hear From You

Posted November 21, 2017
photo of CD with padlock

photo by 422737 |CC0

The Digital Millennium Copyright Act (DMCA) is hurting authors’ ability to make fair use.

But you can help by taking 5 minutes to fill out this short survey.

The problem: The DMCA makes it illegal to rip from DVDs, Blu-ray discs, and many other encrypted technologies, and this restriction is blocking authors’ ability to make fair use. This causes serious harm to authorship in the digital environment. Why? Because even though fair use allows authors to use copyrighted video in their e-books in certain situations, the DMCA restricts authors’ access to such material.

What we are doing about it: Fortunately, the law allows for a triennial rulemaking process where the Copyright Office can recommend exemptions for authors to access the works they need. There is an exemption currently in effect—but it only applies to nonfiction multimedia e-books offering film analysis. That’s why Authors Alliance and other organizations are fighting for a modified exemption that will allow all authors of e-books to access the clips they need from DVDs, Blu-ray discs, and digital streaming services.

How you can help: The Copyright Office places a heavy emphasis on stories from authors who have been harmed by the DMCA in the past or are likely to be harmed by the DMCA in the future. Please CLICK HERE TO SHARE YOUR STORIES.

Want to learn more: Click here to learn more about our petition.


Policy Update: DMCA Exemptions and Advocacy

Posted November 2, 2017

Since our founding, Authors Alliance has been tracking developments around Section 1201 of the Digital Millennium Copyright Act (DMCA). Every three years, the Copyright Office can adopt temporary exemptions to Section 1201’s prohibition against circumvention of technological measures that control access to copyrighted works. In 2016, we advocated for a streamlined, less burdensome rulemaking process in order to protect the fair uses of copyrighted works. And in August, we petitioned to renew an exemption that allows for the use of film clips in multimedia ebooks.

Beginning with this rulemaking, the Office did adopt a streamlined procedure for renewing exemptions granted during previous rulemaking sessions, with the goal of making the triennial process more efficient and less repetitious. We are pleased to report that the Copyright Office announced last week that it is recommending the renewal of all the exemptions granted in the previous rulemaking session of 2015—welcome news for authors, critics, scholars, and all who support fair uses of copyrighted content.

We applaud the Copyright Office adopting common-sense improvements to encourage a smoother path for renewals and for recommending the re-adoption of all existing exemptions.

Our work on this issue is ongoing. In September, we filed a new petition, which requests the following:

  • Lawful circumvention of DRM for use in fiction multimedia e-books (the current exemption is restricted to nonfiction multimedia e-books);
  • Allowing circumvention of DRM for use in multimedia e-books on other subjects besides film analysis (the current exemption allows for uses in film analysis only); and
  • Removing limitations that refer to screen-capture technology.

In December, Authors Alliance—with legal assistance from the UC Irvine and the University of Colorado, Boulder and joined by other like-minded organizations—will submit a new round of comments in support of these additional exemptions to the Register of Copyrights as part of the seventh annual triennial rulemaking process for 2018, with the goal of building on the success of our previous efforts. We will continue to track this issue closely, and will provide updates on our comments and the eventual response from the Copyright Office, expected in the spring of 2018.