Fair use is a tricky situation to navigate. While it’s true that it is perfectly legal to use a small portion of another’s work in our own—even without permission, as long as it’s attributed—the laws of what constitutes that small portion are unclear at best.
Here’s the thing many authors forget: fair use is only a defense in a court of law. It doesn’t shield you from getting sued. The only way to do that, no matter how small of a portion of another’s work you use, is to get permission.
That being said, you’re not likely to get sued. There’s really no money in suing someone unless it’s a clearly winnable case andthe perpetrator has been making large profits by using the work. Thus, if you use half of the lyrics to a song in your book and your book becomes the next big craze, then you can expect to get sued. Otherwise, probably not—but the potential is still there. Hence, your decision whether to pursue permissions, cut the borrowed material, or leave it is entirely dependent on how risk-averse you are.
What is considered fair use can only be determined by the copyright holder or a copyright court judge. The less you use, the more likely these two forces will find that your use is fair. However, proportion may be more important than absolute length.
Generally, for song lyrics, we recommend using no more than two lines. Likewise, if you’re quoting from another long narrative work, up to forty words should be safe.
Another note: titles and short phrases (fewer than ten words) are not subject to copyright. Neither are facts.
Public Domain
Public domain is another argument you could use if you were sued for using copyrighted material. In the US, anything published before 1923 is considered public domain—although, if the material is translated, the translated material is the copyright of the translator, and you have to check that the translation was published before 1923.
Beginning in 2019, all works published more than ninety-five years ago will become public domain on December 31stof the ninety-fifth year. For works published after 1977, the copyright will expire on December 31stof the seventieth year after the author dies.
Since we get so many questions from our authors about this issue, we hope that this article was informational! Feel free to comment below on any experiences you’ve had with fair use, or any questions!
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