Intellectual Property Law
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Copyright has a doctrine that is called "fair use". Fair use is a limitation and exception to the exclusive right of a copyright holder. The doctrine permits limited use of copyrighted material without acquiring permission from the rights holders
in addition, the extent of use is also a factor in whether fair use is recognized
what is your ebook about?
It is a memoir and I used some lines of three songs in a scene where I'm listening to the radio and hearing these songs played. the songs evoked the memory of that period and I used these to help set the scene for the chapter. How do know that I am applying fair use in this instance?
Fair use does not generally apply to works of fiction. It is generally intended to facilitate criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, parody / comedy.
However you may be protected by another doctrine in copyright law that is called transformative use
A memoir is not a work of fiction, my book is about an experience i had in my life when I was young. But I cannot say that the book is to facilitate all that you mentioned.
generally under transformative use so long as the copyright materials are used for a completely different purpose then then the new work is entitled to its own copyright protection. Here you used the lyrics not to be used in another song but rather to illustrate a certain point in the book.
In addition, the extent of use of the copyrighted work seems somewhat limited and I'm not sure what damages you would create
therefore if you are terribly concerned about this revise your ebook and edit the lyrics out (thank goodness there are no presses to stop...)
I agree that because it is an ebook, I can revise it and glad that no hard copy currently exists.
otherwise my sense is that the use is de-minimis and that you will not get a push back though of course I cannot predict what the copyright holder will do
What is the impact of already sold units to the copyright owner of these songs if they found out that I already sold a few (less than ten and mostly to family members and friends) without asking their permission?
Also, I would have thought that my editor should have warned me or told me about this, isn't that so?
The impact is very little. As noted I can't imagine that because of the reference in your ebook the song sustained damages.
I would not worry about it
as far as your editor, no one is 100% and unless there is a contractual guarantee that the editor will be responsible for any missed copyright items I'm not sure there is a real issue here other than you may not want to work with this editor again
Yes, I agree about what you wrote below.
Can you pont me to legal references on transformative use?
wikipedia has good entries. Search for "copyright derivative use" and for "copyright transformative use"
Ok, is there anything I should worry about with this issue? Would you strongly recommend my revising the ebook? The reason I asked is that the ebook is available in several ebook reader formats and I would need to contact each one (Kindle, ibook, Sony, etc)
Personally I don't think this is an issue but obviously I do not know the extent of zealousness with which the particular copyright owner pursues what they consider are copyright violations. If you had been selling hundreds of thousands of copies then I would most definitely recommend a comprehensive legal review, however since you will likely sell a few dozen / hundred copies and this is such a small part of your book (it's not like it is on the cover) and you used only several lines of the songs leads me to believe that nothing will come of it.
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Ok, thanks very much.
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