Use of quotes

[Blankshield]

I have some ideal quotes that I want to add to Death's Door, but they ain't mine to use.  I have some queries as to fair use and attribution before I do, though.

I would like to include some quotes from movies and music.  I'm intending to attribute them, but I don't know if that is enough in a commercial product.

I have seen, in various RPG products all of the following:

1: quotes lifted from source, unattributed.
2: quotes attributed, but no acknowledgement of copyright, fair use or ownership.
3: quotes attributed, with a notice of "used without permission"
4: quotes attributed, with a notice of "used with permission"

My main questions center around the last couple.  What utility does the "used without permission" grant?  Has anyone sought permission, and what did it entail?

thanks,

James

[clehrich]

The rules for quoting text I can talk about.  Movies and music I can't.

The first point is to distinguish between getting sued for copyright infringement and losing the suit.  Chances are, you don't want to be in either situation, but the first is completely unpreventable.  Get that very clear in your head right from the start.  Unless you publish with a real publisher, who will protect you against this sort of thing with their lawyers, there is no protection against a suit.  And it will cost you a pretty penny to fight off the suit.  

The best you can do is to stay so far within the "fair use" boundaries that nobody ever brings a suit, but there's no way to guarantee this.  If you have a publisher, as I say, it's essentially their problem: by publishing your work and holding onto its copyright, they undertake to defend you against copyright infringement and also to defend you against suits claiming such, unless they can reasonably claim (by a countersuit against you) that you have deceived them by presenting as your own work something that was not such.  This is part of what publishers get paid for, after all.

Now granted all that, how do you make the best effort you can not to be sued in the first place?  By adhering to the rules so scrupulously that a company's lawyers recognize that they haven't a hope in hell of winning a suit against you.  Some companies may want to sue you anyway, figuring you're more likely to settle out of court because of the threat, but at the same time they've got to figure that as an indie RPG designer you don't have a lot of cash.  Unless the lawyers really think you're infringing on their client's copyright, they're not likely to go after you.

Okay, so basically the rules on text have to do with "fair use."  

First of all, there's a certain percentage of the text that you can use.  My understanding is that the usual quoted percentage is about 5%, but if I were you I'd keep it a good deal smaller, say around 1%.  That much you can use without any sort of permission.  If you want to be careful, and you should unless you retain a lawyer or have a real publisher, keep it down to insanely small amounts of the text, like a couple of lines out of a good-sized novel.

Second, you must attribute the source clearly and accurately.  For example:

"To Sherlock Holmes, she is always

the woman." --- A. Conan Doyle, "A Scandal in Bohemia," Adventures of Sherlock Holmes[/list:u]Now in this case, there are so many editions of the volume floating around that this much citation is sufficient.  If there is only one edition, because the text is under tightly-held copyright, you must give the full citation including copyright information and so forth; usually this appears in a footnote or bibliography somewhere.  Normally you are unlikely to be sued for not including this, but my understanding is that it's skating on somewhat thin ice.

Third, whatever you have quoted must be distinguished as such.  You are not supposed to write:

Just like for Sherlock Holmes, Irene Adler was always

the woman.[/list:u]and then include a footnote.  Again, you can usually get away with it, but don't try.

Fourth, absolutely everything that is someone else's intellectual property must be attributed, right down to words and short phrases.  So for example you can't use the term "mytheme" without putting it in quotes the first time and telling us where you got it, i.e. from Claude Levi-Strauss.

Fifth, bear in mind that the percentage rule means that a great deal of poetry is simply out of bounds.  If you quote one line of a haiku by a modern poet, or translated by one, you have used 1/3 of the text and must pay.  This is why authors of books on poetry get reamed.

Sixth, you must attribute anyone like an editor or translator who has made the text available to you.  So if you quote a translated work, you must give the translator's name as well as the author's.

Seventh, the more you use a text in a manner that you don't think will be congenial to its author, the more likely that author (or her publisher or copyright holder) is likely to go after you.  Unless you know otherwise, you should assume that any RPG will not be congenial to an author and stay very strictly within the boundaries.

Eighth, my understanding is (note that we are now into legal territory so do not take this as gospel) that "fair use" of RPGs and similar materials has not been tested in the courts in a strong manner.  Unless you intend to seek legal advice, I'd avoid it entirely or expect that there is a real possibility you will be sued.  White Wolf, for example, has something of a claim that you are interfering with their ability to sell their own works if you quote from them and sell them as RPGs yourself; a novelist cannot make this claim strongly.  My guess, once again not a matter of legal competence, is that if you stay very far within the fair use boundaries for use of textual products, you will not lose the suit, but it will be expensive and a pain in the ass.

As I understand it, the rules on "fair use" for films, TV programs, musical works (including lyrics), and so forth are extremely complicated and distinctive by medium.  These people are also likely to be vigilant about copyright protection, so you need a professional answer.

[LordSmerf]

One quick note about "fair use".  It is not uncommon for cases which are obviously "fair use" to be brought to court anyway since a major corporation has a legal department and even if you win such a case you will likely be bankrupt.  So no amount of care actually makes you safe.

That's just the way things work.  Of course most of the time, as long as you make a sincere effort to give credit where it's due, no one will bother you.  Give as much citation as you feel is necessary.  The problem is that since copyright infringement is a civil issue (as opposed to a criminal one) nothing prevents anyone from bringing a suit against you...

Thomas

[Blankshield]

Thanks for the responses so far, but I should clarify:

I know that I cannot prevent anyone from suing me.  I know that fair use is not protection, and that I can be 100% in the right and still lose my shirt because someone feels threatened by my product's use of their IP.

That's not what I am asking about.  What I am asking is specfically about the two phrases I have seen: "used with permission" and "used without permission", under what circumstances they're available and what degree of effort/protection is involved in each of them.  The contexts I have seen them in is specifically WRT lyrics, and it is lyric quotation that I am most interested in including.

Does anyone have any information about that specifically, or do I need to go the hard way and slog through SOCAN and ASCAP rules and regs until I find what I'm looking for?

Sorry for not being clearer the first time out of the gate.

thanks,

James

[LordSmerf]

My understanding of lyrical liscensing is much weaker than my understanding of film and textual stuff, but here's how I understand things.  The copyright holder for any given lyric is the person who actually authored the lyric itself.  Sometimes these people are under exclusive contracts with record labels.  Your best bet for permission is to contact that person and obtain said permission.  They will be able to tell you the specifics of the copyright concerning a given work.

So, if you want permission as in "used with permission" contact the songwriter in question.

Thomas

[clehrich]

That's not what I am asking about.  What I am asking is specfically about the two phrases I have seen: "used with permission" and "used without permission", under what circumstances they're available and what degree of effort/protection is involved in each of them.  The contexts I have seen them in is specifically WRT lyrics, and it is lyric quotation that I am most interested in including.

"Used with permission" means that you have contacted the copyright holder and that person or persons has or have authorized you to use this piece of text in this way in this context.  It is complete protection against a lawsuit: you have a signed contract from the copyright holder, and for that holder to bring a suit would likely produce, at the least, a legal wrist-slap from the judge for wasting the court's time.  No lawyer in his right mind would bring suit against you for adhering to a contract of this sort; he could not possibly win.  If you were to write "used with permission" without this contract in hand, you would almost certainly be liable.

"Used without permission" means nothing at all.  It's an invitation to a lawsuit.  Unless you hold a contract in your hand that says, "You may use this piece of text in this way," you are using the text without permission.  You may, however, be using it fairly and legally, which is a separate issue discussed previously.

[Paul Czege]

James,

Bruce Baugh, who has written many many hundreds of thousands of words for White Wolf, has http://www.indie-rpgs.com/viewtopic.php?p=58688&highlight=#58688">posted that they "switched to an official policy of 'only quotes in the public domain' in 1996/1997....So anyone who sees Sister of Mercy and Shriekback quotes is seeing them in older books." I'm not certain there is a fair use standard that applies to lyrics.

Paul