What are the fair use rules in the USA for short quotes from books or song lyrics in a novel?

Question

What are the fair use rules in the USA for short quotes from books or song lyrics in a novel when they are explicitly quoted and attributed to their source? I'm looking at self-published work (otherwise, it would be the publisher's headache), so probably not more than 1000 copies.

Answer 1

There are no clear-cut, bright line rules for fair use in general. That said, such uses may well be fair use this comment to the contrary notwithstanding.

One may always ask the copyright holder for permission to use a part of a copyrighted work. If one requests and gets permission, that isn't fair use. The copyright owner (who for a recent work is probably not the publisher) may grant permission on whatever terms s/he chooses, or refuse it. But that is not fair use. Fair use is a situation in which the law allows use of copyrighted content without permission. Fair use is an exception to copyright. It is spelled out at 17 USC 107.

Fair use is judged on a case by case basis. If a use is of a small fraction of the original source, that tends to favor a holding of fair use. If a use is transformative, that is for a quite different purpose than the original, that tends to favor fair use. If a use is commercial, then tends against fair use. If a use is of a creative work, that tends somewhat against fair use. If a use does not harm the market for the original, and would not even if many people made similar uses, that tends to favor fair use. if a use does not serve as a substitute for the original, that tends to favor fair use. No one of these factors is alone definitive. See This thread from Law.SE and the other threads under the fair-use tag there

The Wikipedia article "Fair use" reviews the law of fair use in detail, quoting from a number of significant cases on the subject, and analyzing each of the four statutory factors. The article, in discussing additional factors (beyond the four statutory factors) states:

One such factor is acknowledgement of the copyrighted source. Giving the name of the photographer or author may help, but it does not automatically make a use fair. While plagiarism and copyright infringement are related matters, they are not identical. Plagiarism (using someone's words, ideas, images, etc. without acknowledgment) is a matter of professional ethics, while copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, for example by passing off a line from Shakespeare as one's own. Conversely, attribution prevents accusations of plagiarism, but it does not prevent infringement of copyright. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.

See also the Nolo article on Fair use, which covers some of the same ground as the Wikipedia article. The Nolo article states:

A determination of fair use usually occurs during a copyright infringement lawsuit. The holder of a copyright (the plaintiff) will accuse someone of infringing on protected work (the defendant). At this point, the defendant accused of infringement may argue that the infringement is excused under the fair use doctrine.

...

The drafters of the Copyright Act were careful to advise that the fair use doctrine expressed in Section 107 was intended only as a guideline. Beyond a broad statutory explanation, courts are free to adapt the doctrine to particular situations on a case-by-case basis.

In theory, all four factors are equally important. In practice, however, courts often focus on the first and fourth factors, considering the nature of the infringement and the effect on the copyright holder's market. The U.S. Supreme Court has noted that "transformative" uses of copyrighted work can deeply affect the analysis of the first factor. And courts often focus on the impact of the use on the potential market for the original, under the fourth factor, as a proxy for the harm done by the infringement.

See also "Measuring Fair Use: The Four Factors" from the Stanford University library system. Note that this includes no mention of the introductory statement fom 17 USC 107 ("*...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, ..."), nor does the Nolo article quoted above. This article states:

In a 1994 case, the Supreme Court emphasized this first factor as being an important indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work.

Literary references, including short quotes, to other works of fiction are commonly allowed as fair use. They are usually appropriately attributed.

In "A Writer’s Guide to Fair Use" Lawyer Howard G. Zaharoff writes:

[There is] no magical percentage (e.g., 10%) or number (e.g., 250 words) that is always, under all circumstances, okay. Still, rarely should borrowing a couplet from a long poem or song for noncompetitive purposes, or 250 non-essential words from a book-length work, be deemed infringing.

In "A Writer’s Guide to Fair Use and Permissions + Sample Permissions Letter" Jane Friedman writes:

Whenever you decide to directly quote, excerpt, or reproduce someone else’s work in your own—whether that’s a book, blog, magazine article, or something else—you have to consider, for each use, whether or not it’s necessary to seek explicit, legal permission from the work’s creator or owner.

Unfortunately, quoting or excerpting someone else’s work falls into one of the grayest areas of copyright law. There is no legal rule stipulating what quantity is OK to use without seeking permission from the owner or creator of the material. Major legal battles have been fought over this question, but there is still no black-and-white rule.

However, probably the biggest “rule” that you’ll find—if you’re searching online or asking around—is: “Ask explicit permission for everything beyond X.”

What constitutes “X” depends on whom you ask. Some people say 300 words. Some say one line. Some say 10% of the word count.

The number of copies published of the work that includes quotes does not directly form one of the fair use factors, but it might well be part of the "affecting the market" calculation.

Unfortunately, the only way to be sure that a use is a fair use is to be sued for copyright infringement and have a US Federal court so rule.

Examples

Below are several recent examples of actual court cases in each of which a copyright infringement suit was brought, and a US Federal court has held that fair use applies and thus the copied content was not an infringement.

None of these cases was a simple literary reference, because that is so commonly allowed as fair use that no one sues over it. But none of these cases is limited by the "educational or critical use" language from the opening part of 17 USC 107.

Oyewole

Consider Oyewole v. Ora 291 F. Supp. 3d 422 (S.D.N.Y. Mar. 8, 2018). The US Copyright Office has published a summary of this case, as part of its "Fair Use Index". The summary reads:

Plaintiff Abiodun Oyewole (“Oyewole”), a founding member of the spoken-word group The Last Poets, wrote the song “When the Revolution Comes” in 1968. According to Oyewole, the song includes repeated uses of the phrase “party and bulls..t” to “challenge[] and encourage[] people to not waste time with ‘party and bulls..t,’ but to move towards success.” Decades later, two recording artists—Christopher Wallace a.k.a. “The Notorious B.I.G.” and Rita Ora—separately released two songs (entitled “Party and Bullshit” and “Party,” respectively) that repeat the phrase “party and bulls..t” in lyrics that celebrate self-indulgence.

Oyewole brought suit against Wallace, Ora, and composers, producers, publishers, and distributors associated with the songs (collectively, “Defendants”), alleging copyright infringement. Specifically, Oyewole claimed Defendants appropriated and exploited the punchline, performance, lyrics, poem, rhythmic line and text of his original song. Defendants moved to dismiss on several grounds, including that their use of the phrase “party and bullshit” was fair use.

The court assumed Oyewole was the owner of the copyright in When the Revolution Comes, the phrase “party and bulls**t” was a protectable expression, and the works were substantially similar. In assessing the fair use defense, the court decided that the first factor, the purpose and character of the use, strongly weighed in favor of fair use. Although Defendants’ songs clearly had a commercial purpose, the court held that Defendants’ songs transformed the purpose of the “party and bulls..t” phrase from “one of condemnation to one of glorification.” On the second factor, the nature of the copyrighted work, the court observed that Oyewole’s song was creative, which weighed against fair use, but also that it was published, which favored fair use. Addressing the third factor, the amount and substantiality of the work, the court commented that whereas Defendants’ songs repeat the phrase multiple times, it was only one phrase from the end of Oyewole’s song and “not critically important to the song’s message.” Lastly, the court found the fourth factor, the effect of the use on the potential market for or value of the work, favored fair use because the songs appeal to different target audiences and are so dissimilar in character that Defendants’ songs do not “provid[e] the public with a substitute” for Oyewole’s work. Weighing the factors together, the court concluded Defendants’ uses were fair uses and granted the Defendants’ motion to dismiss. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s ruling without a detailed discussion of the fair use factors.

James Castle Collection

Consider James Castle Collection and Archive, LP v. Scholastic, Inc. and Allen Say No. 1:17-CV-00437-BLW (D. Idaho Oct. 30, 2017) Again, the US Copyright Office has published a summary of this case, as part of its "Fair Use Index". The summary reads:

Plaintiff James Castle Collection and Archive, LP is the exclusive owner of all copyrights to the relevant works of renowned Idahoan artist James Castle. Defendant Allen Say wrote and illustrated a children’s book on Castle’s life, which Scholastic, Inc. published. The book is an “imagined biography,” written from the perspective of Castle’s fictional nephew, and includes approximately 150 illustrations, all drawn by Say. About 28 of those illustrations are imitations of Castle’s works by Say, “while the other illustrations are Say’s own depictions of various events in Castle’s life, drawn in a style similar to that of Castle.” After the book was distributed to book sellers, but before it was released to the public, Plaintiff sued Scholastic and Say for copyright infringement and moved for entry of a temporary restraining order to prevent the sale and distribution of the book.

After conducting the four-step analysis, the court concluded that Defendants were likely to prevail on a fair use defense and thus denied the motion for temporary restraining order.

As to the first factor, the purpose and character of the use, the court found that the book was transformative since Say used the illustrations to create his own version of Castle’s life. Accordingly, the fact that the book was commercial in nature was “of little significance.”

With regard to the second factor, the nature of the copyrighted work, the court found that Castle’s works were “within the core of intended copyright protection” and that this factor favored the Plaintiff. However, the court stated, “in cases of transformative use, the nature of the work carries less significance.”

As to the third factor, the amount and substantiality of the use, the court found that “the copying was necessary to enhance the biographical narrative, told largely through Say’s own illustrations that were not exact copies, but mimicked Castle’s style.” Therefore, the court found that this factor favored Defendants.

Lastly, the court held that the fourth factor, the effect on the potential market for the copyrighted work, likely weighed in favor of the Defendants because the Plaintiff “dislikes the way Castle is portrayed in the Book and would not have licensed his art for that use.”

Who’s Holiday

Consider Matthew Lombardo and Who’s Holiday LLC v. Dr. Seuss Enterprises, L.P. No. 1:16-cv-09974-AKH (S.D.N.Y. Sept. 15, 2017), affirmed, No. 17-2952-cv, 2018 WL 3323476 (2d Cir. July 6, 2018) Again, the US Copyright Office has published a summary of this case, as part of its "Fair Use Index". The summary reads:

Plaintiff Matthew Lombardo authored the play Who’s Holiday, and Defendant Dr. Seuss Enterprises owns the copyright in the book How the Grinch Stole Christmas!, which was authored by popular children’s author Dr. Seuss. Who’s Holiday “make[s] fun of” and “criticize[s]” Grinch by incorporating its characters, plot elements, and distinctive rhyming style into a “bawdy, off-color” Christmas comedy that imagines Cindy Lou Who, a Grinch character, in middle-age.

In 2016, Defendant sent Plaintiffs a cease-and-desist letter alleging copyright infringement, after which Plaintiffs halted production on Who’s Holiday and filed suit against Defendant, seeking, among other claims, a declaratory judgment that the play constitutes fair use. Defendant filed counterclaims alleging copyright and trademark infringement.

The court invited Plaintiffs to file a motion for judgment on the pleadings on the issue of fair use, stating that fair use could be resolved by conducting a side-by-side comparison of Who’s Holiday and Grinch.

Following its four-step fair use analysis, the court held that Who’s Holiday is a fair use, and it granted Plaintiffs’ motion for judgment on the pleadings and dismissed Defendant’s counterclaims for copyright and trademark infringement.

As to the first factor (the purpose and character of the use), the court found that the work is a parody since it “subverts the expectations of the Seussian genre,” and therefore it is necessarily transformative. Because the work was deemed to be transformative, the court gave less weight to the fact that the work is of a commercial nature, also a consideration under the first factor.

In discussing the second factor (the nature of the copyrighted work), the court reasoned that Grinch is “closer to the core of intended copyright protection” since it is sufficiently creative to merit parodying, but the court noted, for that reason, the second factor is generally of little significance in a parody case.

As to the third factor (the amount and substantiality of the use), the court explained that Who’s Holiday’s “use of Grinch is not excessive in relation to the parodic purpose of the copying.”

Lastly, the court held that the fourth factor (the effect on the potential market for the copyrighted work), favored a finding of fair use, because the intended “adult audience[]” for Who’s Holiday did not interfere with the market for the original book or the licensing market for derivative works. While Defendant claimed to have previously authorized works that included “themes and jokes aimed at adult audiences,” the court reasoned that Defendant was unlikely to license a parody referencing “bestiality, drug use, and other distinctly ‘un-Seussian’ topics.”

Answer 2

Let me answer the question in a different way. (for USA only)

A grant-funded organization has been producing a set of Best Practices guides for fair use in the USA. This organization consulted with several leading US copyright experts before producing this document of best practices.

The one for poetry is particularly informative and helpful. The great thing about these guides is that they define best practices NOW without having to talk to a lawyer or read up on case law.

These guidelines were designed precisely to make it easier for indies to follow and are practically consensus documents. Obviously for edge cases, you should use caution and/or seek professional legal advice, but for example, there are guidelines for quoting verse as epigraphs (which is a very common use case).

Perhaps a copyright holder could still file an infringement claim, but I think the fact that you are using the CMSI code for best fair use practices would offer some protection in the USA at least. These documents were written collaboratively by experts in the legal field and leaders in content industries and were underwritten by several major foundations and even the federal government. Because of the ambiguity in the concept of fair use and lack of case law, my guess is that it is highly unlikely a judge would rule against you if you are following the CSMI Best Practices for fair use.