Re: Fair use or Free Use (Was: copyright for educational use of film)

On Thu, Oct 15, 1998, Tim Richards <tim.richards[_at_]umich.edu> wrote:
>
> On Sat, Oct 10, 1998, Shelly Warwick <swarwick[_at_]sprynet.com> wrote:
> >
> > I am concerned about consistent advice to seek permissions
> > where fair use is not 100% guaranteed, which it mostly isn't,
> > especially as I have even given such advice myself...
>
> This is a cause for real concern. This pernicious tendency to play it
> safe and seek permission plays directly into the hands of publishers
> and deligitimizes the principle of fair use. Note, for example, the
> October 9 issue of "The Chronicle of Higher Education" in which Ken
> Wasch, president of the Software Publishers Association, states (p.B7):
>
> "The best strategy... is to assume that fair use does not
> apply, and to request permission to use the material from
> the copyright owner (usually the publisher."

The authors/editors of the Chicago Manual of Style, the style book of nearly Biblical stature used by most U.S. publishers, have been warning for years that timidity about fair use will ultimately spell its death. Even as far back as 1969, when fair use was not yet codified, they said, "If the quoted passage is from a published work in prose and not an entity of any sort within a larger work and if its use does not detract from the value of the original, the author should probably not ask permission to use it, regardless of length. The right of fair use is a valuable one and should not be allowed to decay through failure of scholars employ it boldly." A Manual of Style, Twelfth Edition, Revised, section 4.18, p. 93 (Chicago: University of Chicago Press, 1969). Thirteen years later, in the 13th edition, they reiterated this concern, and added: "Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's defense." The Chicago Manual of Style, Thirteenth Edition, Revised and Expanded, section 4.47 p. 124 (Chicago: University of Chicago Press, 1982).

I have heard colleagues caution clients against asking for permission on the ground that it suggests that permission was necessary--and the use therefore not fair. I understand this on a gut level, but I also understand authors' fears of being embroiled in lawsuits that are devastatingly costly to defend and wish that this inference (i.e., of non-fairness) could be definitively invalidated. On the other (other) hand, I continue to feel strongly that the get-permission-for-everything reflex that has developed in our society is costly to us and that we should find a way to curtail it.

I should add, I did not get the permission of the University of Chicago for the two quotations from the Manual of Style.

Jamie Bischoff
bischoff[_at_]ballardspahr.com Received on Fri Oct 16 1998 - 20:57:18 GMT