There are several factors that a court will consider when determining whether an instance of infringement qualifies as fair use. Non-commercial use weighs heavily in favor of determining that the violation is fair use. Violations often occur when use is primarily motivated by a desire for commercial gain. The fact that a work is published primarily for private commercial purposes precludes the conclusion of fair use.
For example, using Bob Dylan's line You don't need a meteorologist to know which direction the wind blows in a poem published in a small literary magazine would probably be fair use; using the same line in a raincoat ad probably wouldn't be. Without your consent, you normally cannot use another person's protected expression in a way that harms (or even potentially harms) your labor market. For example, let's say Nick, a golf professional, writes a book on how to play golf. Copy several brilliant paragraphs on how to putt from a book by Lee Treviño, one of the best putters in the history of golf.
Because Nick intends his book to compete and hopefully replace Trevino's, this use is not fair use. Some people mistakenly believe that they can use any material as long as they give credit to the author. Giving credit and fair use are completely separate concepts. Either you have the right to use another author's material under the fair use rule or not.
The fact that you attribute the material to the other author doesn't change that. That said, crediting your source will decrease the chances of litigation, as the original author may feel that he received the appropriate credit. For example, copying 200 words from a 300-word work would not be fair use. However, copying 2000 words from a 500,000-word work may be fair.
It all depends on the circumstances. To preserve the free flow of information, authors have more freedom of action when using material from factual works (academic, technical or scientific works) than fantasy works, such as novels, poems and plays. The more important the material is to the original work, the less likely its use will be considered fair. In one famous case, The Nation magazine obtained a copy of Gerald Ford's memoirs before publication.
In the journal article on memoirs, only 300 words of Ford's 200,000 word manuscript were quoted verbatim. The Supreme Court ruled that it was not fair use because the cited material (which deals with Nixon's forgiveness) was the heart of the book. The most interesting and moving parts of the entire manuscript, and that pre-publication disclosure of this material would reduce the value or sales of the book. When it comes to fair use, unpublished works are inherently different from published works.
Publishing an author's unpublished work before he or she authorizes it violates the author's right to decide when and if the work will be made public. While there may be nuances in the particular domestic laws applicable in these states, there is generally a high degree of harmony. The information provided on this site does not constitute legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship will be formed or formed through the use of the site. Like other aspects of digital media, the law regarding links from one website to another is not fully established.
Trademark law, on the other hand, protects words, names, symbols or devices used in trade in goods or services to indicate the source of products and distinguish them from the goods or services of others.
