Anyone who has been hanging around the indie world for even the shortest time knows that there has been an uptick in authors threatening book reviewers with lawsuits claiming copyright violation. I shake my head every time I see it. Attorney/Author Sean Keefer has returned with his pithy advice on the subject of copyright and fair use. This time addressing book reviews and fair use.
In my last post on the Author CEO I covered the topic of copyright in regard to original works, where I briefly mentioned the concept of fair use.
Fair use allows for certain usage of copyrighted material by third parties without the permission of the copyright holder.
The basic guiding principle is that when usage of copyrighted materials includes such uses as criticism, comment, news reporting, teaching, scholarship, or research, there is no infringement of copyright. These types of uses are allowed under the doctrine of fair use.
To determine if the use of copyrighted material is covered under fair use, there are four factors that must be examined. However, these factors are not static and there is fluidity in their application.
The purpose and character of the use. Basically, how is the copyrighted work used? Non-commercial use, teaching, and scholarship and the like receive more protection than commercial use. But simply because certain use is commercial in nature does not automatically violate the fair use doctrine.
The nature of the copyrighted worked. If, for instance, the work is non-fiction and the use involves the using of facts or statistics from the work, more latitude is given. Fiction gets more copyright protection than non-fiction because of the creative element in the process of creating fiction. However, simply because a work is fiction, does not mean that one cannot quote from it for comment or review. (Keep this in mind, we will be coming back to this.)
The amount of the copyrighted work to be used. How much of the copyrighted work has been used? The simple approach would be to say that the more material that is used, the more likely there is a violation of the fair use doctrine. The problem is that there is a great deal of inconsistency regarding how much or a published work one can use. The numbers are all over the board. There have been instances where only a small amount of a published work had been used and it was found go beyond fair use. There have also been instances where a large part of the work was used and the use was considered acceptable under fair use. Let’s use the example of poetry as an example. If there were a collection of poems and in a review, one poem was used, while it may be an entire poem, this would likely be protected as it is one from a collection. The situation would likely be different if the total of the published work was one poem and the reviewer quoted the entire poem. In both cases the same number of words would have been used, but in our first scenario it was a smaller percentage of the whole. In the latter it was the entire work.
The take away here is that there is no minimum or maximum word count or percentage of the work that may or may not be used, rather the question will likely be from what is used how does it relate to the whole and does it act to diminish the copyright of the work.
The impact the use has on the market. Looking at poetry again, if, for example, a single poem was reviewed and the reviewer quoted the entire poem, then a situation is created where someone may read the review (and the entire poem) thus depriving the author revenue from a sale regardless if the review was positive or negative. However, in the context of a book review this does not mean that if the review was bad then it was not fair use just because people may be less likely to buy the book. In essence, the likelihood is low that the nature of the review would be considered when determining fair use.
You may be picking up on a theme of book reviews. I have been asked numerous times recently if book reviews violate the copyright of the book.
Generally, my answer is no. Most book reviews, such as those on Amazon, book blogs, individual review websites, in newspapers or other similar outlets, use largely the same format. Quoting short passages from the book, given that the amount of the book used is minimal in the context of the whole work, would likely not be a violation of copyright and, in my opinion, would be allowed under the doctrine of fair use.
The same would even be true if an image of the cover was used to accompany a review. (However, if the cover is a photograph, and the copyright to that photograph is held by someone other than the owner of the book copyright, and the author of the book has used the photograph with permission, a reviewer’s use of the photo may violate the copyright for the photo.)
In general, if your book is reviewed somewhere by someone, the odds are that the review will fall under fair use regardless if the review was positive or negative. Keep in mind that one factor that will likely not play in at all on fair use is whether a review is positive or negative.
So, if your book gets a bad review, roll with the punches. We are writers. We can’t please everyone all the time. I find there are three things that really help when it comes to managing bad reviews: a good editor, a group of beta readers, and a thick skin. I looked at a book from the Amazon top 100: The Fault in Our Stars by John Green. That book has a tremendous number of five-star reviews, but it also has almost 300 one-star reviews. That’s a lot of bad reviews.
People have asked me what to do if a bad review is written. My answer? If the book is solid, the good will outweigh the bad. If the bad outweighs the good, perhaps a critical look at your work is in order. However, taking action under a violation of fair use is likely not the avenue to consider. In my opinion, to pursue such a remedy would likely cost a great deal of money for attorneys and, if the use is allowed (which is likely to be the result), all such action would do is put a bull’s-eye on your book and highlight the negative review(s).
This all having been said, we as writers are going to get bad reviews bad reviews. Chances are those reviews will likely be allowed under the doctrine of fair use.
So what do you do if you get a bad review? Read it, embrace it, take it constructively, then move on. If you want to vent to a friend about the how out of touch the reviewer is, have at it, but realize that fair use is likely going to give a complete pass to the reviewers.
Keep at it and maybe we can all be like John Green with 300 negative reviews and a movie deal.
United States Copyright Office: http://www.copyright.gov/