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Copyright question: Do I have to ask & get written

Copyright question: Do I have...
Copyright question: Do I have to ask & get written permission to put a quote from someone else's book into the book that I am writing, or can I legally use a short quote (no more than 2-3 sentences) as long as I show it's a quote (with quotation marks) and attribute the source (author, name of book)? Likewise, can I quote something someone said on a LinkedIn discussion similarly, or must I ask their permission?
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Answered in 4 minutes by:
3/8/2018
ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
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It's always best to get permission. Note that you should consider what the owner of the copyright can actually DO as well when making this determination. That is, if the copyrighted content is not registered with the US Copyright Office, the owner can't sue for attorney fees, costs, statutory damages or interest. They can only sue for actual damages that can be proven, which is pretty hard.

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner. The award of statutory damages and attorney’s fees is the big stick in copyright law that prevents most cases from going to trial – less than one percent of infringement suits filed. The statutory damages will likely be less of an expense for the infringer than paying the plaintiff’s attorney fees if the case goes as far as trial. Figure on five figures just to get the ball rolling, and six figures if the case ends up going to trial. If the copyright isn’t registered three months after publication or before an infringement, that’s cash you’ll have to pay out of pocket, which is likely to be more than any damages you can hope to recover unless the infringing work was a bestseller or had that much of an impact on your own sales.

So the Linkedin quote likely isn't registered, but the book probably is.

Now, depending on your use, it could also be fair use. Here's what the law says regarding fair use: "... the 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; and

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

Fair use is a defense to infringement, and should not be a primary strategy. That is, you should first try to obtain permission / a "license" / etc.... from the owner of the copyright. If you're unable to obtain permission and still need to use the copyrighted work, that's when you say that the use is fair use. Note that a court might disagre and say it's infringement, which is why you want to use it as a fall-back when you can't obtain the actual permission.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

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ScottyMacEsq
ScottyMacEsq, Attorney
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Customer reply replied 5 months ago
Thank you....the answer is thorough, but seems focused on worst possible case. Information that seems lacking in this response is why on earth anyone would consider use of a 2-3 sentence quote from a 200-page book "infringement." It is a huge effort plus time drain to try to go through publishing houses to get permission for using quotes. But, I asked a lawyer and got a lawyer's response. It would be nice to know how this works in the real world - do people really ever get sued for using quotes? I know many people who use quotes in their books and do NOT get sued. Thanks.
Customer reply replied 5 months ago
One more thing....fair use seems to refer to copying the ENTIRE work...in other words, it implies that the issue to begin with is copying of an entire work, not a quote with attribution.

Exactly. As a lawyer I need to focus on the worst possible case, just in case. The most likely case is that the owner of the copyright won't care. But to BEST protect you it would be best to get permission, if possible, and use fair use as a backup in case you can't get permission.

People RARELY get sued for quotes, but it does happen. That's why we have caselaw on fair use in the first place, because it does get to court (which is a prerequisite for there being caselaw).

Fair use absolutely doesn't deal with the entire thing. Remember the statutory factors:

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; and

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

So if you use the entire work, it's almost certainly NOT going to be fair use because it would be ALL of the copyrighted work used. A sentence here or there might be depending on how much it relates to the whole work. But would you honestly think that you can reproduce Harry Potter if you omit a single letter? Of course not. And it would certainly not be fair use if you reproduced the entire work.

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Customer reply replied 5 months ago
Thank you that makes sense...can you by any chance point me to an example of when someone was sued for using a quote without permission?

Here's a good site that has a number of cases: https://fairuse.stanford.edu/overview/fair-use/cases/

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By the way, if you feel that I have gone above and beyond in this question (having spent more than an hour with you and answering all your follow up questions) can you please change your rating to 5 stars (you rated it 4 stars, but you can change it). Thanks!

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Customer reply replied 5 months ago
I'd be happy to change your rating to 5 stars but it won't let me??

You've tried to click on the fifth star? I've not had anyone have issues changing it before...

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Customer reply replied 5 months ago
I'm clicking on the 5th star and no dice...I'm using chrome on a mac, then I switched to firefox and it still would not let me add the 5th star...I'm sorry!

Understood. I do appreciate that you tried. That's the first time that I have heard about that.

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