Can I Quote That? Ask Your Lawyer

At least, that’s the short version of the answer.

The slightly longer version of the answer would be: how long has the original author or speaker been dead?

This has come up a few times when I wanted to quote more than just the title of a song or poem. The rough rule of thumb for fair use in a commercial setting (your book) that I was given has been five words. If you quote more than five recognizable words, then you are getting into copyright law’s turf. The rule comes from academia, specifically what constitutes plagiarism, and a real copyright law site suggests that you can go a touch farther. In one case, I knew I didn’t have a prayer of using the lyric, because it was (and as far as I know, still is) tied up in a nasty copyright fight between a performer and the writer of the song, and the distributor.  That’s the sort of fight no author wants to wade into, so I made up some lyrics that fit the mood of the song and went from there.

Making up something is always safe. Doing your own translations is also safe.

The rule of thumb for most printed works is: has the author or artist been dead for more than seventy (70) years? If so, the work is probably in public domain, and you may quote away. There are some exceptions for archival material and stories that were copyrighted by an institution or publication, but if you want to quote Arthur Conan Doyle or Rudyard Kipling, or Robert Browning, go for it.

If you are outside of the US, please, please check your nation’s laws. Some have shorter copyright spans, some longer. If you might get sued over it, do your homework first. Spare yourself the pain.

If you do choose to quote something under fair use, such as having your protagonist quote Raymond Chandler’s “A blond to make a bishop kick a hole in a stained-glass window,” (from Farewell My Lovely), include the source in your acknowledgements page, or works cited. Will this keep you safe? It is not a 100% guarantee, but the fact that you gave proper credit can mollify some authors or composers.

Sometimes. The fact that your work is for sale tips the balance toward a stricter standard for what requires payment of permissions fees as compared to what is free Fair Use.

Some fights are not worth picking. If you are not completely certain if you can cite or quote a song, poem, or book through fair use, think long and hard of you really need that. If so, you need to start digging for the copyright holder (not always clear) and then find out what the fees are. Especially if the lyrics are from a source that is well-known for protecting its brand.

Below are some starting sources, with general information. The US Copyright office also has a web site with good to decent information. The government doesn’t always keep up with what the courts rule, so some things might end up being a little different “in the wild.”

https://illusionofmore.com/

This article from nolo.com is a good introduction.

Click to access circ01.pdf

Now, something that I encountered for the first time recently: Do you post excerpts of a work on your website or blog? If so, especially if it is a short work, make sure to remove them before you upload your book to sell (unless you are truly indie.) Leaving a certain percentage on-line without a paywall can trigger the “Do you really own this?” query from e-book distributors, which delays your release. It’s not copyright per-se, but something you do need to be aware of.

Set eighteen months before Eerily Familiar, Lelia and Tay go west to study. They have survived the schlorp-monster, a mage gone bad, and Mr. Lee’s exceedingly strong cinnamon candy. But can they survive . . . the Grandmother.

33 comments

  1. Do you have a link to the point you make in your final paragraph? I’m finding that confusing. Lots of bloggers post excerpts and links. Are you talking about excerpts of your own work or of others’ work?

    1. My own work. I’d prefer not to include the original e-mail from Amazon, but I’ll poke around their site later today, when I get back from worship, and see what links I can pull.

      I have heard from others that they found out they’d had material pirated and uploaded on file-sharing and other sites when they got similar warnings from Kobo and Amazon.

      1. At the moment, it is in the Amazon KDP ToS in paragraphs 5.8 and 5.1.2-3

        “If we request that you provide additional information relating to your Books, such as information confirming that you have all rights required to permit our distribution of the Books, you will promptly provide the information requested, and you represent and warrant that any information and documentation you provide to us in response to such a request will be current, complete, and accurate. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify your rights to permit our distribution of the Books and the accuracy of the information or documentation you provide to us with respect to those rights.”

        Source: https://kdp.amazon.com/en_US/help/topic/G200627430

    2. The ever-changing rules about this are in the ToS for KDP somewhere. Not only will they get you for this, but if you post what they consider too much of a story or novel, they can kick that title out of KU for not being “exclusive” to Amazon.

      1. “The ever-changing rules about this ”

        Can anyone tell me why an author would sign this sort of contract with a publisher? I’ve never encountered a valid contract where the terms could be changed at will….. by only one side.

        “I am altering the bargain. Pray I do not alter it any further.”

        1. KDP isn’t a publisher. It is, at best, a distributor. And, before you start on Amazon is Evil, every one of the digital storefronts have clauses like this and they are allowed to change them with notice. The problem is, most authors pay little to no attention to emails containing the notices and they rarely revisit the ToS page for that “storefront”.

    3. What TX said. It’s happened to me before, but not really a big deal because those books I have wide.

      Basically, I decided to collect my web serial into ebook/paperback volumes, in hopes of making a little money off of them. BUT I didn’t want to take them down from my blog, because they’re primarily for building readership. Thus, I put them up wide, and got the first two volumes I got an email asking me to confirm I really in the work. It was pretty straightforward, and on volume 3 they didn’t give me any trouble.

      Again, these books are NOT in Select.

  2. Good info!
    Years ago, I wrote a novel about a musician who liked to quote songs as part of normal conversation. Alas, because of copyright laws, I can never publish that book.

  3. “but if you want to quote Arthur Conan Doyle…” make sure it’s from the works that are out of copyright worldwide — some are still protected in the U.S. The final collection IS still under copyright and the Estate is quite nasty about enforcing it, including any use of situations and characters that appear only in those final stories.

    https://www.forbes.com/sites/davegonzales/2015/05/31/the-strange-case-of-mr-holmes-vs-us-copyright-law/

    “In June of 2014, the Seventh Circuit of the United States Court of Appeals ruled on the Klinger case and defined the copyright of the Sherlock Holmes stories. With American copyright law only extending 95 years after publication, 46 of the 56 Sherlock Holmes stories and all 4 novels were in the public domain. The final ten stories, collected in The Case-Book of Sherlock Holmes, were all published from 1923 to 1927 and will enter the public domain one by one up until 2023.”

    Note that this restriction only applies in the U.S. However if you plan to sell your quoted work in the U.S…. beware.

    Website with all works, which will restrict you by location: sherlock-holm.es

  4. Here in Canada, copyright is a bit different. For instance, the early James Bond novels are now public domain, which the SocJus crowd took advantage of because they can’t create anything of their own that the public wants to read:

    The irony? The publisher is now accused of treating its authors poorly. Shocking. Positively shocking.

  5. Does it help if you attribute “where you got the line from”?

    IE If a phrase is from a fictional character and you attribute it as by (for example) “Ambassador Kosh of Babylon 5”.

    1. If you make it clear that a character is quoting the work of fiction, possibly. That’s a slightly grey area where I’ve found several disagreeing opinions.

      If you really want to include a quote like that, I’d have a completely fictional back-up already written, so if you get a certified letter from the rights holder, you can do a cut and switch.

      1. In the case, I was thinking about the author used part of it as the Book title and a bit later used (not by a character) the full phrase.

  6. If your quote comes from an independent artist you can always just ask. My latest book quotes a filk song. The artist gave permission in exchange for a paperback copy.

  7. Glad to have read this. It would have never odd to me. Question: are characters the same. Say I have a female character that attends a costume party (un)dressed as Dejah Thoris. Would that be copyrighted? How do cosplayers manage this?

    1. Burroughs’ Mars books are public domain, or at least the first few are.

      Apparently Heinlein had a previous version of Number of the Beast which was not published because copyrighted entities did not play ball. I gather it is being published soon, so there is that. But it did not help RAH or Virginia Heinlein.

      1. Ah, another thing to keep an eye out for. I’ll expend my one link on Pursuit of Pankera: https://www.arcmanorbooks.com/heinlein. It appears, though, to be a “pieced together from notes and such” edition, which does not fill me with the warm and fuzzies. I was rather disappointed with the “unexpurgated” version of Stranger, to be honest – I think the tortuous rewrite that RAH was forced into for the originally published version made it a better book. That could be my “first version, first love” reaction to many things, of course.

        Now, there was also a change between the illustrated trade edition of TNOTB and the MMPB – did anyone else notice it? The name of the anti-nausea medication changed (the name in the trade edition is trademarked by a pharmaceutical aggregator, the one in the MMPB is not trademarked so far as I can tell).

        Which brings up another point of IP that writers must be careful of: trademarks. There is no expiration of a trademark. There can be successful challenges to an attempt to enforce it, if the owner has allowed it to become a “generic term” – such as the Kimberley-Clark facial tissue trademark.

        Note also that, absent the challenge, there is no such thing as casual “fair use” – even if you acknowledge the trademark (a generic copy can use the “compare to…” phrase, although that took some litigation to establish). The owner has complete control over the use of the mark (within certain limits; search the Passive Voice website for some of those in a more complete and readable form than I can do here).

        Oh, one other bit, while I’m rambling away here (apology for that) – does anyone here know of a legitimate source for the illustrations in the trade edition of TNOTB? Ones that aren’t defaced by being split across pages?

    2. It depends on who owns the copyright, and (big, big point) are you doing it to make money, and will your actions hurt the brand? The commercial cos-players I’ve talked to have agreements with the copyright holders that OK them playing the roles. Folks who do it for fun come under Fair Use in most cases in the US.

      If someone comes to a party dressed as Deja Thoris, and that is mentioned, it’s not a problem. If Princess Leia comes to the party (not a cosplayer, but the character) in a work of commercial fiction, it’s time to consult an IP expert or a comprehensive IP information site.

    1. The president’s words are not copyrighted, provided you take them from a broadcast transcription or published government transcript or document. If you take them from a copyrighted collection, then things start getting murkier.

      1. Similarly, NASA’s photos of the early space program are public domain because they’re government documents of the US Federal government. But you want to make sure that the copy on your hard drive actually came off the NASA site, because if you copied it from another website (especially if the site owner cropped it or otherwise altered it), there’s a risk that they could claim copyright.

        I’m getting ready to release “Phoenix Dreams” as an e-book for the anniversary of the Apollo I Fire, and I need to double-check which photos of Roger Chaffee out of my astronaut photo collection actually came off NASA servers. If TinEye shows multiple possible places where I could’ve gotten it, I’ll probably download a fresh copy of the one I’m using for the cover from a NASA server so there is no question.

        1. Yep. The flip side – the use of private IP in “public discourse” gets even more wild. I used to have a link to a mildly interesting analysis of “Where’s the beef?”, but that probably disappeared about the time I finally (reluctantly) uninstalled Netscape…

  8. On a related note, I saw a UFO conspiracy book on Amazon which had, among other things, a picture of an Asgard alien from Stargate on the cover. Pretty sure MGM would have something to say about that . . .

    1. Are you sure that it was the Stargate Alien?

      IIRC The Asgard Aliens were based on the Grey Aliens of UFO Mythology.

Comments are closed.