I am familiar with what the US Code says about copyright and fair use, and am specifically interested in actual practice regarding academic publications which use small amount (under 10% of the original) of a protected work, without obtaining permission. Specifically, I would like to know if an infringement suit has ever been successful when the amount of copying has been under the prevailing "substantiality" threshhold, and the copying was in an academic publication. I'm not asking what might happen or whether I should ask permission. U.S. cases and non-U.S. cases would be relevant (to the extent that "fair use" concepts exist in other systems). Alternatively, if you know of a case where the copier prevailed specifically because the use was in an academic publication, that would be relevant.
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5+1, I would love to see if any examples can be given. That being said, the case doesn't have to be successful against the alleged infringer to be damaging to them. Depending on their agreement with the publisher, it might be very costly to defend the suit, and/or the article might be withdrawn. These possibilities might occur independently of whether the author ultimately wins the lawsuit.– Bill BarthCommented Mar 4, 2015 at 19:46
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3What's your underlying question here? What difference will the answer make to you? As it stands, this is very broad, and it's hard to see the usefulness of an answer that says "in Judisdiction X, Y happened" if you're not in Jurisdiction X. NB "under 10%" is not necessarily a "small amount": to reuse one single image from a protected work without permission is going to raise concerns.– 410 goneCommented Mar 4, 2015 at 19:49
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2EnergyNumbers, the underlying question is whether academic publication is de facto if not de jure a bullet-proof defense against infringement. If the courts have ever found a journal / author of an academic work to have infringed, given an "insubstantial" amount of copying, that would argue against this hypothesized "rule"; if this has happened many times, it would refute the conjecture, and depending on the cases, could obliterate alternative conjectures. Available evidence so far shows a lack of decisive cases. I'm trying not to separate text and image right now.– user6726Commented Mar 4, 2015 at 20:51
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1This is not an answer to your question, but two considerations are still in order: * What matters is not whether you copy a certain fraction of the original work (say, 10%), but instead the amount you copy. If you copy half a page without attribution from a 500-page book, then that's just as wrong as if you copy half a page from a 6-page conference proceedings. * There are doubtlessly far fewer legal actions about copyright infringements than cases of academic misconduct investigations because someone points out that you copied a page from somewhere else without attribution.– Wolfgang BangerthCommented Mar 5, 2015 at 3:12
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3Even if there has never been a lawsuit over academic fair use, I wouldn't consider that as strong evidence that it is a good defense. My impression is that academic publishers are extremely risk averse regarding fair use. If they see even a small chance of being sued (and even if they think they would likely win), they typically insist on getting permission in advance from the copyright holder. This means fair use never even comes up in more than a small fraction of the cases in which it might have been relevant, so it hasn't been tested as thoroughly as one might wish.– Anonymous MathematicianCommented Mar 5, 2015 at 3:41
2 Answers
One case in a similar direction is Sundeman v. The Seajay Society. A researcher included quotations from an unpublished work in a presentation; this was upheld as fair use. There's some discussion of the case and the outcome from the Columbia copyright office (have to scroll down a little bit). There are some other related cases listed on the same page, e.g. involving fair use of copyrighted images in less academic publications.
Half an answer...
I no longer have a copy of Permissions: a survival guide (lent it to someone and never saw it again) but from memory, it discusses a few cases along these lines, particularly from the scholarly-art-monograph world.
(While the XYZ estate can't stop you writing about XYZ, they can make it very difficult if they refuse you the rights to use any of their visual artwork... and publishers get nervy about claiming fair use on things they would normally expect to pay fees for.)
Unfortunately, it's been a while since I read it and so I don't recall if any of them got as far as a legal case; I suspect the publishers usually folded. Worth taking a look if you can find a library copy, and seeing if it names specific cases, as these might be just what you're after.
