Hello mpaige,
Thank you for your question. I have to say that I began this research
believing that your use of a single quote fell under "fair use" and
started making a case for just that. However, the more I searched, the
more I cam to believe that you will need permission to use this,
especially in the case of Tolkien works. I have not changed my answer
and you will see below as it develops how I came to change my opinion.
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Your usage of a quote should fall under "fair use". You should likely
have no problem, but sometimes this can fall into gray areas. Let's
take a look at some references:
Wikipedia defines Fair Use as:
http://en.wikipedia.org/wiki/Fair_use
"...The fair use doctrine is an aspect of United States copyright law
that provides for the licit, non-licensed citation or incorporation of
copyrighted material in another author's work under certain,
specifiable conditions. The term "fair use" is unique to the United
States; a similar principle, fair dealing, exists in some other common
law jurisdictions. (US trademark law also incorporates a "fair use"
defense. While the names are the same, the doctrines are quite
different.)
Fair use makes copyrighted work available to the public as raw
material without the need for permission or clearance, so long as such
free usage serves the purpose of copyright law, which the U.S.
Constitution defines as the promotion of "the Progress of Science and
useful Arts" (I.1.8), better than the legal enforcement of claims of
infringement. The doctrine hereby attempts to balance the interests of
individual copyright holders with the social or cultural benefits that
follow from the creation and distribution of derivative works. Insofar
as this doctrine protects forms of expression that might otherwise be
enjoined as copyright infringing, it has been related to First
Amendment free speech protections in the U.S. Constitution...
They continue:
...In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include?
the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the
copyrighted work...
I'd encourage you to read the entire article. I do wish to point out
this section which I believe most targets your specific question and
usage:
...Amount and substantiality
The third factor assesses the quantity or percentage of the original
copyrighted work that has been imported into the new work. In general,
the less that is used in relation to the whole, e.g., a few sentences
of a text for a book review, the more likely that the sample will be
considered fair use. Yet see Sony Corp. v. Universal City Studios for
a case in which substantial copying ? entire programs for private
viewing ? was upheld as fair use. Conversely, in Harper & Row,
Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985), the use of
less than 400 words from President Ford's memoir by a news magazine
was interpreted as infringement because those few words represented
"the heart of the book" and were, as such, substantial..."
This site from the University of Texas seems to fall on the very
conservative side of fair use:
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
"...What is fair use?
We would all appreciate a clear, crisp answer to that one, but far
from clear and crisp, fair use is better described as a shadowy
territory whose boundaries are disputed, more so now that it includes
cyberspace than ever before. In a way, it's like a no-man's land.
Enter at your own risk.
Why is it like this and does it have to be this way? Is there no
alternative to the vagueness of the "four factor fair use analysis,"
to fear of lawsuits and frustration with uncertainty? Maybe it is
reasonable to simply throw up our hands and say, "What's the use?"
After all, many legal scholars, politicians, copyright owners and
users and their lawyers agree that fair use is so hard to understand
that it fails to provide effective guidance for the use of others'
works today. But the fact is, we really must understand and rely on
it..."
A link from this page goes to their "four factors" of fair use:
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#test
Though the clear emphasis on this page is educational and research
usage, there is an important take-away:
"...FACTOR 3: How much of the work will you use?
Small amount More than a small amount
This factor has its own peculiarities. The general rule holds true
(uses on the left tip the balance in favor of fair use; uses on the
right tip the balance in favor of asking for permission), but if the
first factor weighed in favor of fair use, you can use more of a work
than if it weighed in favor of seeking permission. A nonprofit use of
a whole work will weigh somewhat against fair use. A commercial use of
a whole work would weigh significantly against fair use.
For example, a nonprofit educational institution may copy an entire
article from a journal for students in a class as a fair use; but a
commercial copyshop would need permission for the same copying.
Similarly, commercial publishers have stringent limitations on the
length of quotations, while a student writing a paper for a class
assignment could reasonably expect to include lengthier quotes..."
Let's look further.
The US Copyright Office has the following to say:
http://www.copyright.gov/fls/fl102.html
"...One of the rights accorded to the owner of copyright is the right
to reproduce or to authorize others to reproduce the work in copies or
phonorecords. This right is subject to certain limitations found in
sections 107 through 118 of the copyright act (title 17, U.S. Code).
One of the more important limitations is the doctrine of ?fair use.?
Although fair use was not mentioned in the previous copyright law, the
doctrine has developed through a substantial number of court decisions
over the years. This doctrine has been codified in section 107 of the
copyright law...
...The distinction between ?fair use? and infringement may be unclear
and not easily defined. There is no specific number of words, lines,
or notes that may safely be taken without permission. Acknowledging
the source of the copyrighted material does not substitute for
obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision
of the U.S. Copyright Law cites examples of activities that courts
have regarded as fair use: ?quotation of excerpts in a review or
criticism for purposes of illustration or comment; quotation of short
passages in a scholarly or technical work, for illustration or
clarification of the author?s observations; use in a parody of some of
the content of the work parodied; summary of an address or article,
with brief quotations, in a news report; reproduction by a library of
a portion of a work to replace part of a damaged copy; reproduction by
a teacher or student of a small part of a work to illustrate a lesson;
reproduction of a work in legislative or judicial proceedings or
reports; incidental and fortuitous reproduction, in a newsreel or
broadcast, of a work located in the scene of an event being reported.?
Copyright protects the particular way an author has expressed himself;
it does not extend to any ideas, systems, or factual information
conveyed in the work.
The safest course is always to get permission from the copyright owner
before using copyrighted material. The Copyright Office cannot give
this permission..."
The Trustees of California State University have this to say about
obtaining permission, though I am not sure you actually would be
required to for just one quote - even in a commercial work. But for
reference:
http://www.cetus.org/fair7.html
"...When permission is necessary, you must contact the copyright owner
or the owner's authorized agent. Often the copyright owner will be
named in the formal copyright notice accompanying the original work.
Such notices are no longer required to obtain copyright protection, so
many works often lack the notice or include the name of someone who is
not the actual or current copyright owner. Nevertheless, you should
logically begin your search for the copyright owner by directly
contacting the author or publisher. Reference librarians can be
extremely helpful for finding names and addresses. You will also find
that the quest for the copyright owner can be simplified by using your
telephone to call the parties and to ask direct questions about
ownership and rights of use.
The Copyright Clearance Center (CCC) can also simplify the process by
acting as the agent on behalf of thousands of publishers and authors
to grant permission..."
Nolo Press is one of my favorite resources for anything legal
presented in clear and plain language. They say:
http://www.nolo.com/article.cfm/objectID/C3E49F67-1AA3-4293-9312FE5C119B5806/310/276/240/ART/
"...Sooner or later, almost all writers quote or closely paraphrase
what others have written. For example:
Andy, putting together a newsletter on his home computer, reprints an
editorial he likes from a daily newspaper.
Phil, a biographer and historian, quotes from several unpublished
letters and diaries written by his subject.
Regina, a freelance writer, closely paraphrases two paragraphs from
the Encyclopedia Britannica in an article she's writing.
Sylvia, a poet, quotes a line from a poem by T.S. Eliot in one of her own poems.
Donnie, a comedian, writes a parody of the famous song "Blue Moon" he
performs in his comedy act.
Assuming the material quoted in these examples is protected by
copyright, do Phil, Regina, Sylvia, Andy, and Donnie need permission
from the author or other copyright owner to use it? It may surprise
you to learn that the answer is "not necessarily."...
This is another excellent article and will show that while you do not
meet the guidelines for criticism, news reporting, research,
non-profit or parody, you still *may* fall under fair use for using
simple a single quote. But I am now starting to belive that even this
single quote use should seek out permission.
Another highly suggested full read.
This page discusses copyright issues with "A Course in Miracles" and
has interesting items to note for your question:
http://www.jcim.net/Copyright%20Policy--7.2001.htm
"Authors may quote (or closely paraphrase) up to 300 words of prose
from A Course in Miracles" and our related publications (written,
audio, video, internet, etc.), other than newsletter articles, either
in one quote or cumulatively, in their own news articles, books,
scholarly journals, research papers, audio/visual works, or internet
material, and for personal/individual use, without written permission,
if all of the following criteria are met (the same policy holds for
quotations from Foundation articles, except that these citations may
not exceed 150 words):
1. The 300/150 words do not constitute a complete unit, such as an
article, chapter, sub-chapter, lesson, or verse. With respect to the
poetry in The Gifts of God, up to l0% or ten lines, whichever is less,
may be used without permission. However, permission is required for
the use of a complete literary unit of any poem (verse or stanza)
regardless of length.
2. The 300/150 words account for not more than 10% of the text of the
work in which they are quoted.
3. The 300/150 words are used to illustrate or support the author's
own text. (Permission is required for use of every quotation of any
length used in an anthology, collective work, or adaptation.)
4. The 300/150 words are not used for purposes of advertising or
promotion, or to sell products or commercial services.
5. Proper copyright and trademark acknowledgment is given..."
They further state that any quotation used for commercial products
must have permission.
Wiley Publications seems to claim differently:
http://www.wiley.com/legacy/authors/guidelines/stmguides/3content.htm
"...As a general guide, permission is more likely to be needed if the
source material is short or the excerpt which you wish to use
represents a significant portion of either of the work in which you
found it or in which you intend to use it. Also, any material which
constitutes or represents the heart or key elements of the source
material, such that your use could possibly serve as a substitute for
the original, will also require permission. More specifically, you
should always secure permission for:
1. A single quotation or several shorter quotes from a full-length
book, more than 300 words in toto.
2. A single quotation of more than 50 words from a newspaper,
magazine, or journal..."
Again, my personal opinion is that your use of a single quote from
Tolkien would fall under the guidelines mentioned at Wiley rather than
the more stringent guidelines professed at some of the mentioned sites
above.
I attempted get more specific for you and searched "fair use" +tolkien
to find the following:
net.guide
http://www.pcfa.org/tech/articles/fair_use.html
"...Perhaps the products you sell online are targeted to sci-fi
fantasy readers and advertisers, so you took a bit from Tolkien. Or
maybe your jingle-writing brilliance is best embodied by that Mod
Squad theme. Courts will smell a commercial nature in such uses. If
you want to tip toward noncommercial, add a new meaning or message.
Discuss why Tolkien was an elf-loving misanthrope. Debate Matt
Groening's allusions in The Simpsons. Provide commentary or criticism
and the first factor tilts toward fair use.
The second statutory factor, the nature of the copyrighted work, is
the least important criterion. Artistic creations are considered
closer to the core of copyright protection, and for these works,
courts will apply a more stringent standard of fair use. Short fiction
and novels, movies, plays, and unpublished memoirs are all considered
artistic expressions. For informational works, the courts will more
readily find fair use. Almanacs, dictionaries, encyclopedias, guide
books, news broadcasts, and legal, medical, and scientific reference
documents are all considered factual material. The artifacts I
proposed earlier are popular icons that the courts will protect
strongly, so the second factor tilts toward unfair use. (As a helpful
hint, remember it's always better to borrow from Noah Webster than
Walt Disney.)
Contrary to urban legend, there is no formula for the third factor-the
amount of a copyrighted work you may fairly copy. The less the better,
but even itty-bitty borrowings can be unfair use if you steal the
heart of the original creation. In 1991, the rapper Biz Markie sampled
three words and some melody from Gilbert O'Sullivan's song "Alone
Again (Naturally)" for one song on his LP. The judge forbade further
production of the entire album..."
Ok. Where I began the research for you believing that a single
quotation, even for commercial usage would be fair use, I am now
believing that the interpretation could go either way. It seems your
question and concern are well founded.
Here are links to seek permission:
Houghton Mifflin Books
http://www.houghtonmifflinbooks.com/faq/permission.html
"...General Interest and Children's Permissions:
For information on obtaining permissions for use of any material
appearing in Houghton Mifflin Trade Division general interest fiction
and nonfiction and children's titles, except dictionary permissions,
please contact our Permissions Department.
Requests must be made in writing and may be mailed or faxed. Please
state specifically the title and author (and copyright year or edition
number, if possible) of the book you are planning to reference, and be
as specific as possible regarding the intended use of materials. For
selection reprint requests, please allow four to six weeks for
response. Response time varies for other types of requests.
The address for our Permissions Department is:
Houghton Mifflin Company
Permissions Department
215 Park Avenue South
New York, New York 10003
You may also contact our general interest and children's Permissions
Department by fax at 212-420-5899
or via e-mail at trade_sub_rights@hmco.com..."
Tolkien's rights appear to belong to his son, Christopher. Everything2
confirms that all rights to the works are fiercely protected as noted
here:
http://www.everything2.com/index.pl?node=Christopher%20Tolkien
"...Christopher Tolkien is the only surviving son of J.R.R. Tolkien,
and is most well known for his stewardship of his father's estate, and
the editing of his father's works...
...Christopher Tolkien has jealously guarded the Tolkien legacy for
over 30 years. Anxious not to allow his father's work to be cheapened
or belittled, the copyright on all aspects of the works has been
fiercely protected. Though J.R.R. Tolkien sold the film rights to The
Lord of the Rings in 1969, Christopher has long insisted that the
books are not suited to movie interpretation, and was vehemently
opposed to the recently released New Line Cinema trilogy.
His championship of his father's work has led him to shun his only
child, Simon. When Simon Tolkien expressed his support for the movie
trilogy, Christopher Tolkien effectively disowned him, barring him
from the board of the Tolkien Company, despite the fact that
Christopher's second wife Baillie and nephew Michael were a part of
the organization.
Simon Tolkien said in an interview: "He communicates with me now
through his lawyer, so I have to live on the basis that he will never
speak to me again as long as he lives. He will never see my children.
He will never have anything to do with me."
Christopher Tolkien's attitude has offended many people. Author
Michael Perry fought the Tolkien Estate in a U.S. court for a year to
be able to publish his book length chronology of The Lord of the
Rings: "Untangling Tolkien". Director Peter Jackson's plans for a
museum in Wellington, New Zealand displaying the props and sets used
in the movies have stalled because of Christopher Tolkien's refusal.
Access to Tolkien's notes on the languages of Arda is extremely
limited.
On the other hand, without Christopher's life work with his father's
legacy, we would not have access to the majority of the work on
Middle-earth. No-one can deny that he has the right to control the use
of J.R.R. Tolkien's literary estate, and his dedication to his task is
praiseworthy..."
Searching for contact information for Christopher Tolkien proved
difficult and several others have posted about the net seeking the
same information as noted in this newsgroup:
http://groups-beta.google.com/group/rec.arts.books.tolkien/browse_thread/thread/b651f516423e8405/9e04d55fc7d59c4e?q=%22contact+christopher+tolkien%22&rnum=1&hl=en#9e04d55fc7d59c4e
"...I am a writer who needs to contact Christopher Tolkien the son of JRR Tolkien.
This issue is personal and involves some legal matters. Does anyone
know how I could get in contact with him? Is Chris Tolkien still
alive?
Any help I could get would be greatly appreciated...
...As with any author, you can send a letter to his publisher for
forwarding. If this involve "legal matters", the publisher will
certainly be involved in addition to (perhaps instead of) Mr.
Tolkien..."
Another thread notes:
"...Write to him in care of Houghton Mifflin Company or HarperCollins
and they will forward the letter to him. I don't know how often he
responds to readers' questions, but he has responded to SOME people
(and even given mention to a few Tolkien Society members in HOME who
wrote to him about
obscure facts and/or errata)..."
"...according to the Houghton Mifflin website
http://www.hmco.com/ this is the address to use:
Author's Name
c/o Houghton Mifflin Company
222 Berkeley Street
Boston, MA 02116-3764 ..."
Best of luck obtaining rights to use the quote!
Search Strategy:
"fair use"
"fair use" +"single quotation"
"fair use" +tolkien
tolkien +copyright OR permission OR quotation
"christopher tolkien" +copyright OR permission OR quotation
"christopher tolkien" +contact OR email
"contact christopher tolkien"
I trust my research has provided you with your answer, contact
information and food for thought. If a link above should fail to work
or anything require further explanation or research, please do post a
Request for Clarification prior to rating the answer and closing the
question and I will be pleased to assist further.
Regards,
-=clouseau=- |
