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Roger
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Category: Intellectual Property Law
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I have written a novel. One of the characters imitates a character

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I have written a novel. One of the characters imitates a character from "The Maltese Falcon" and speaks a few lines of dialogue from the book. Is this considered fair use?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm an Intellectual Property litigation attorney. Thanks for your question.

"Fair Use" allows the use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship or research. If your use of the quoted material does not fall into one of these categories, it's not fair use and you would need to get permission from the owner of the copyright in order to use the quote in your book.

Usually, it is very easy to gain permission to use the material from the owner, and that would certainly be the best way to ensure that you don't get sued.
Customer: replied 1 year ago.

In doing research other intellectual lawyers say that "Fair Use" applies to fiction also. One example is, parody which also falls under fair use, and parody is certainly a form of fiction. Are you saying that using forty words from the Maltese Falcon in a 437 page (117,000 word) novel does not fall under the doctrine of Fair Use?

Expert:  Roger replied 1 year ago.
A parody falls under the "criticism" prong that I referenced above. Thus, it is possible to make a PARODY and claim refuge under Fair Use, BUT, if you're just quoting the words verbatim from the book, it may be VERY DIFFICULT to pass that off as a parody/criticism.

If you're going to make a parody and not copy the content word-for-word, then Fair Use can be claimed.
Customer: replied 1 year ago.

My character is saying a few lines from the book interspersed with other dialogue. If I have him paraphrase and not use verbatim is that okay? An example of his dialogue in reference to buried treasure when asked what is it? He replies, "The stuff that dreams are made of." Should I change that? Make it Dreams are made of that? Seems silly, but I'll do it if you think the Hammet estate will come after me.

Expert:  Roger replied 1 year ago.
Using 5-10 words is usually ok, but quoting an entire speech or text is another. If you're just using short phrases and not an entire page/pages, you'd likely be ok.

However, the absolute safest thing is to contact the copyright owner and ask for permission, or offer to pay a sum to use the information as you wish. That's a lot cheaper than being sued for copyright infringement!
Customer: replied 1 year ago.

Last Question. This is the longest use I have from the book. Let me know if you think I'm okay on this one (in BOLD). Thanks for your advice.


 


Still in character, James patted the book of his forebear.


“It’s in the book. ‘These are facts, historical facts, not schoolbook history, not Mr. Wells’ history, but history nevertheless.’” James sat back with a look of utter contentment; he crossed his hands over his rotund belly.


 

Expert:  Roger replied 1 year ago.
If you are quoting the statement verbatim, then it is worth your while to get permission OR change the statement so it won't be an exact rendition of the statement from the other book.

It is possible that no one would ever catch the phrase as coming from the book, but there's always a possibility - - and it's much cheaper to buy a license to use the content than it is to be sued.
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Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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