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BartEsq
BartEsq, Researcher
Category: Legal
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Experience:  Juris Doctor
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If a new historical biography extensively quotes a deceased

Resolved Question:

If a new historical biography extensively quotes a deceased author's autobiography, would it be considered " fair usage" under current copyright laws if the new biography properly identifies all quotes, and makes new, research documented observations about the author from the quotes. The original autobiography from 1935 is technically still under copyright but there are no heirs of the author, and no one inherited her copyrights in her will.
Submitted: 1 year ago.
Category: Legal
Expert:  BartEsq replied 1 year ago.

BartEsq :

Welcome! Thank you for using JustAnswer.

BartEsq :

My name isXXXXX going to try and help.

BartEsq :

Unfortunately, there is no single guide that definitively states how much of a copyrighted work you can use without copyright liability. Instead, courts look to how such excerpts were used and what their relation was to the whole work. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use.


If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.


Of course, if you are reviewing a book or movie, you may need to reprint portions of the copyrighted work in the course of reviewing it in order to make you points. Even substantial quotations may qualify as fair use in "a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985). However, substantial quotations from non-public sources or unpublished works do not enjoy the same protections.

BartEsq :

It sounds like the documentary should be ok with all the properly attributed quotes. Also sounds like the quotes were used to make a point and not to diminish form the original work. As far as heirs go, the only thinkg you may want to check is to see if the publisher owns the copyright. Regardless, a documentary using the qoutes to make a point about the persons life leans towards fair use.

BartEsq :

Reply when you can. I may be offline or with a customer, please be patient, I will respond as soon as possible.

Customer:

This book is not a review but is a documentary drawing new insights and information about a historic literary figure. After extensive due diligence, there is clearly no living heir nor evidence that a publisher owned the copyright but the copyright laws have changed extending the copyright of the original work that is quoted throughout this new biography. Primary concern: is it necessary to exclude copyrighted material (quotes used) from the copyright of the new biography. While properly attributed, there is concern that too many quotes in this 600 page book, may not be seen as fair usage, even though it is certainly a derivative work, not copyright infringement that would in any way negatively impact the historic figures work (most of which is in public doman.

BartEsq :

Considering the documentary is drawing new insights and information about a historic literary figure, and only using the quotes to illistrate these points, my first inclination is that you should be just fine under the fair use doctrine and do not need to exclude the quotes.

BartEsq :

As mentioned, sometimes one quote can be infringment. But under the circumstances, since the documentary is drawing new insights, I see no problem with the use of the quotes.

Customer:

Under what circumstances would one quote be infringement?

BartEsq :

If the new work was not a documentary. Lets say I write a song and use the quote as the title and min theme.

BartEsq :

Specifically, when the use does not fall under fair use.

BartEsq :

Printing it on a tshirt for profit and commercial use. Pretty clear that is not fair use.

BartEsq :

Section 107 of the Copyright Act defines fair use as follows:




[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --



  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

  4. and the effect of the use upon the potential market for or value of the copyrighted work.


BartEsq :

Reply when you can. I may be offline or with a customer, please be patient, I will respond as soon as possible.

BartEsq, Researcher
Category: Legal
Satisfied Customers: 1506
Experience: Juris Doctor
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