If the material, factual or creative, is intended to be consumed, like workbooks, then it is not protected by Fair Use, and the creator has to go through licensing channels if they want to use the material. If the source material is unpublished, then the author's right of first publishing comes into play and it becomes much harder for the creator of the new material to prove Fair Use.
The Proportion of Original Work Used
The third criterion of the Fair Use Doctrine involves the amount and substantiality of the copyrighted material used in the new material. As is so often the case, there is no hard and fast rule on this. There's a lot of conflicting information out there, but the law has no established limit to how much is "too much". Obviously, if you use the entire copyrighted work, you need a license or legal permission. If you only use some portion, then courts will review how much of the original copyrighted work you are using against how you're using it and why you're using it.
People try to claim "points of difference" (enumerating the ways your work deviates from the original), but there's no actual law supporting that. If you find yourself trying to argue points of difference in your work, stop. The only reason someone does that is because they know they're in the wrong and trying to assuage their guilt. Your best options are to make right what you know is wrong, or to drop it and move along.
Substantiality is a bit more challenging, and not just because that's a hard word to say...or type out, for that matter. What's really being looked at here is how important or significant the selection from the original copyrighted material is to the whole. If your material incorporates the most important or significant parts of the original, you've created a situation that threatens the original's market value. If someone can see the best parts of the original in your new creation, why would they need to see the original? You've effectively spoiled it for them.
The best advice I can offer here is: If your gut is telling you you're doing it wrong, you probably are. Stop. Take a step back from your work. See if there's another way to accomplish your goals without violating someone else's copyright and without trying to turn yourself into a whiny victim.
The Economic Impact on the Original Work
The fourth, and final, criterion of the Fair Use Doctrine is typically the make-or-break point for whether or not a new creation will be granted Fair Use protection. And for good reason. It looks at how the new material impacts the earning power of the original material. Basically, if your new creation will seriously impede the original creator's income, Fair Use is no longer part of the equation.
For someone in a reporting or scholarly position, it's easy to convince yourself your noble work will not affect the original creator's sales. You may even tell yourself that your work will bring the original copyrighted material to more people's attention, and therefore you're really just doing some free marketing (even if you yourself are profiting off the new creation). This isn't much different than the points of difference conversation; you're lying to make yourself feel better about doing something you know you shouldn't be. If your reporting, reviewing, or scholarly presentation fails any earlier criterion, then it most likely will fail on this one, too.
That said, you can pass on every other Fair Use count, but fail here. Copyright exists to protect the copyright holder, and so does Fair Use.
Unfortunately for creators, courts look at the amount and significance of content used in new material, not the tone. That means someone can write a negative review of the copyrighted material, using non-significant clips to make their point, and not violate the original material's copyright. (It often amazes me how many authors don't understand that difference, and how many book reviewing sites bow to authors' ignorance on this point.) While the negative criticism may adversely impact future sales, the criticism itself does not necessarily infringe on copyright. I can't say that loudly enough.
Conclusion
Fair Use is not easy to prove for a very good reason. If you're unsure, check out these outstanding resources:
What is Fair Use? | Stanford University Libraries: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
What is Fair Use | Columbia Copyright Advisory Office: https://copyright.columbia.edu/basics/fair-use.html
Finally, BYU has a Fair Use checklist (http://files.lib.byu.edu/copyright/Checklist_for_Fair_Use.pdf) that does a pretty fair job of helping those incorporating copyrighted materials into their own work sort out what is most likely Fair Use and what isn't. Even if you're feeling pretty confident, take advantage of this great resource!
In the last section of the basic copyright issues, we'll cover the Creative Commons, a nearly twenty-year-old program designed to give creators and rightholders a way to share their works in a remix culture.
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Copyright for Creatives
Non-FictionWe hear a lot about copyright...when it's coming into play. Celebrities and YouTube Personalities recently sued a game for using their trademark dance without permission. And then a bunch of old stories, poetry, and movies were released into the Pu...
1.3 Fair Use
Start from the beginning
