With so much talk these days about video and music piracy, one area of copyright infringement that is not mentioned is that of artists unlawfully using other artists' works. What can you borrow from someone else for your work? The law, and this article applies to U.S. copyright law, has various interpretations, depending on how you want to use the other person's materials. Here are two examples:
- You're writing a new play and you want to include some previously published materials in your play, such as a quotation from a novel.
- You have an audition scene where a character is using parts of another play for their audition in your play.
What's the correct protocol to use the material properly and legally? The easy answer is, it depends. Every situation is going to be different. But all of them are associated with "Fair Use," which has basically five rules, all of which must be considered.
- Are you truly creating something new, or merely copying something else that exists. For the audition scene example, it would appear that a new work is being created, somewhat like Woody Allen's Play It Again, Sam, wherein the main character tries to live his life according to how he thinks Humphrey Bogart would. There are many instances in that movie where bits of Bogie's films are brought in. But this is truly a new work. So in this case, Fair Use would apply.
- Will your new work compete with the work you're drawing the information from? If, for example, a playwright was using material from Rent to create a new show that would compete with the original show, this would not be Fair Use.
- Merely giving credit to the original author is not a substitute for permissions. If Fair Use does not apply, citing credit does not satisfy the requirements. It is certainly honorable and a good habit, but permissions may still be needed.
- There is no standard for number of words, but as a rule of thumb, Fair Use will apply more easily to shorter passages than to longer ones. Taking a few quotations is one thing, but using an entire five-minute excerpt for the audition scene in your play is going beyond the bounds of Fair Use.
- Look at what the borrowed material really consists of. Quality matters as much as quantity. If the small amount drawn from the original material equates to a major portion of the intent of the original, then you may be infringing beyond Fair Use. For example, in Neil Simon's The Sunshine Boys, there is a hilarious scene where Willie is explaining to his nephew, Ben, that words with a K sound are funny. "Cupcake is funny. Tomato is not funny." Even though this bit lasts only a couple of pages, it is such a landmark scene in theater that its entire use would likely infringe beyond the Fair Use rule.
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