There are many legitimate reasons for wanting to reproduce in your work portions of the previously copyrighted works of others. In some cases, your contemplated use falls within the scope of a special provision of U.S. copyright law called the "Fair Use Doctrine" and does not require the permission of the copyright holder. In other cases, your contemplated use falls outside the scope of the Fair Use Doctrine and requires written permission from the copyright owners before you can reproduce the copyrighted material in your work.

Some Copyright Fundamentals

The principal purpose of U.S. copyright law is to advance public welfare by providing economic incentive for the creation and dissemination of works of authorship. Thus, the law grants to an author of a copyrightable work a temporary monopoly over the reproduction and distribution of his or her work -- a bundle of exclusive rights which the author may sell or exploit for personal gain during the term of copyright. In other words, creative expressions qualifying for copyright protection may not be reproduced without the permission of the copyright holder.

What Does This Mean?

Copyright law protects original, creative works of authorship. It does not protect blank forms, titles, or phrases (as they lack sufficient creativity), and it does not extend to material said to be in the public domain (predominantly works of the U.S. government and works whose term of copyright has expired).

Copyright law concerns authorship or expression, i.e., words and images, not the underlying facts or ideas, the theory being that one ought not be able to appropriate historical facts to one's exclusive use simply by being the first to report them. Facts, statistics, and concepts can be recited without permission (though you may nonetheless wish to cite the source for support or credibility). What you cannot do is copy or plagiarize the original or creative manner in which the original data was expressed.

Paraphrase Versus Plagiarize

It is the unprotectability of facts and ideas that gives rise to an under-appreciated distinction between paraphrasing and plagiarism. The word paraphrase is derived from the Greek para phrasien -- to show alongside. In its proper sense, to paraphrase means to extract unprotected facts from protected expression -- a perfectly honorable endeavor, notwithstanding the well intentioned (but misguided) admonishments of many a high school composition teacher. The word plagiarize, on the other hand, is from the Latin plagiare -- to kidnap. To plagiarize is thus to appropriate the literary composition of another and pass it off as one's own.

Facts Versus Expression

So how many words can you take (and which ones are they) before you cross that troublesome boundary between unprotected fact and protected expression? The lawyer's answer is, "It depends . . .." For fact-based works -- names, dates, places, and events are fair game, i.e., answers to the journalist's questions of who, what, when, where, how, and why. Conversely, literary devices and techniques are off limits -- alliteration, hyperbole, simile, colorful description, and metaphor all belong to their creators.Thus, a 200-word newspaper account of the appointment of a new member to a corporate board probably contains very little in the way of protected expression. Whereas a 2,000-word human interest story or op/ed piece might contain very little in the way of unprotected fact.

For works of fiction, the public's interest in free access to facts and ideas is absent, and thus the scope of protection is much broader, encompassing not only the literal words on paper but also the original plot lines and well developed characters contained therein.

Once you have managed to parse out the unprotected fact, you are left with the protected expression which, as a general rule, may not be "reproduced" -- that is to say, quoted, adapted, abridged, excerpted, traced, photocopied, or captured electronically, without permission. The permission must be granted in writing (in most cases), with any conditions satisfied, and must be signed by the copyright holder (frequently the publisher, sometimes the author).

The Fair Use Exception

The "Fair Use Doctrine" is a complex exception to the monopoly power vested in authors by the copyright law and is intended to protect the right of reasonable public access to copyrighted expressions for limited purposes.

The copyright statute says "fair use" of a copyrighted work without permission for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. Whether the use is "fair" is determined by considering four 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;
4. the effect of the use upon the potential market for or value of the copyrighted work.

Whether a given use is fair is a mixed question of law and fact determined by the courts on an ad hoc basis, one case at a time. While there are statutory provisions for library photocopying and legislatively endorsed guidelines for classroom copying, there are no statutory or case law rules of thumb for most commercial purposes.

Word Counts and Cases

A rumor, persistent among authors and editors, has it that the law does provide for a word-count safe harbor -- some say 300 words is the limit, some say 500, some say 1,000, some say 10%. Perhaps these notions are the product of misunderstood case reports, or the misapplication of administrative guidelines from other publishers' permissions departments, or the misinterpretation of classroom copying guidelines, or simply wishful thinking. But, suffice to say that none of these rules are grounded in fact. A few recent cases will make the point.

In Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir., 1987), 200 words from the unpublished letters of J.D. Salinger directly quoted in an unauthorized biography were deemed to exceed the bounds of fair use, largely as a result of the unpublished character of the original letters. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), 300 words from a book quoted in a magazine article published prior to the release of the book were deemed outside the scope of fair use, in part because the unauthorized publication scooped the book publisher and undermined the value of the first serial rights to the book.

At the other end of the spectrum lies Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), where 7,000 words from interviews discussing unwanted pregnancies in a pro-choice treatment were quoted in a pro-life work critical of the analysis and conclusions reached in the earlier work. The Maxtone-Graham court first paid homage to the single, irrefutable rule of fair use analysis, saying: " There are no absolute rules as to how much of a copyrighted work may be copied and still be considered fair use," (at 1263) before going on to demonstrate the doctrine's flexibility. Here the court was influenced by the motivation behind the second work, intended as scholarly or philosophical criticism rather than as a purely commercial endeavor, in reaching the conclusion that such an extensive use of material was indeed within the scope of fair use.

Nonetheless, the statutes, cases, and history of fair use do give us some mileposts for navigating the fair use maze.

Practical Pointers and Guidelines

Fact-based, non-fiction or scientific works receive less protection than fictional works, and commercial works will likely be given less protection than literary or artistic works.

Commercial uses are accorded less deference than uses that have a significant non-commercial purpose.

Tables and charts containing facts can be copyrightable to the extent that the arrangement of information is original or creative -- the facts are fair game, but the manner of display may not be.

If you are quoting without permission in reliance upon fair use:

• Transcribe accurately from the original;
• Provide proper attribution to the source (your credit line should say "Source: . . ." or "As reported in . . ." and not "Adapted from . . ." or "Reprinted with permission from . . .");
• Take only as much as you need for a permitted purpose -- criticism, comment, news reporting, scholarship, teaching, or research;
• Avoid segregating the quoted material in a sidebar or box, particularly if you have appropriated the material simply to add illustration or color and as a substitute for creating your own illustration or example;
• Make your use of quoted material transformative, i.e., work it into the context of what you are otherwise saying and add some value by the use of criticism, comparison, or comment.

• Make sure your have checked your facts or can attribute them to a reliable source;
• Do not use names of real people with contrived facts;
• Do not use real facts with phony names where the facts themselves suggest the identity of the individuals actually involved;
• Do not reprint real phone numbers without permission, or make up phony numbers (unless they contain the "555" prefix).

As reported in both The New York Times and Educational Marketer in late March, seven authors of a K-8 mathematics textbook series last published by Merrill Publishing have settled their breach of contract and conspiracy claims against the publisher for $3.2 million. The dispute grew out of the acquisition of Merrill by Macmillan in late 1989 and the resulting list review and consolidation.

The authors in this case had signed contracts with Merrill in early 1989 to revise their Merrill Mathematics series for a third edition in time for the 1990 Texas math adoption and had subsequently fulfilled their contract obligations to supply the revised manuscript. After the acquisition, however, Macmillan refused to honor its obligation, undertaken in acquiring the list, to publish the Third Edition. Moreover, Macmillan refused to release the rights to the work to the authors and refused to release them from non-compete clauses in their contracts, effectively precluding them from writing in their discipline for a period of five years.

The authors claimed that Macmillan's motivation was to eliminate their work from competition with Macmillan's own Mathematics in Action series.

While it is generally the case that publishers reserve a broad latitude to determine whether a manuscript is suitable for publication (whether it be a first edition or revision), they also have an implied obligation to deal in good faith with their authors. The unique combination of circumstances here:

• two previous editions published, with a history of increasing market share;
• a recent acquisition and list review;
• survival of the acquirer's competing title;
• failure to release the rights; and,
• failure to release the authors from their non-compete;