Fair Use Question of the Month: I've been denied permission from a license holder -- do I still have fair use rights?
In this month's fair use question, a communications professor is told by her publisher she must get permission from the license holder to include a copyrighted image she refers to in the text of her nearly completed book. Does she need permission?
If you had a fair use claim in the first place, being denied permission only underlines your fair use rights. As is made clear in Reclaiming Fair Use, fair use is a right (or technically an "affirmative defense," which is one kind of a right) that keeps freedom of expression alive given copyright monopoly rights. It's the most important element of copyright that keeps copyright from being private censorship. If copyright owners could censor your speech, then copyright would be unconstitutional, because it would violate the First Amendment. Government policy would have enabled private censors. The Supreme Court has said this repeatedly.
Did you have a fair use claim? If this is an illustration of a point you are arguing in the book, then your fellow communication scholars agree with you that you do. Take a look at the Code of Best Practices in Fair Use for Communication Research, developed by the International Communication Association. You might want to ask yourself if it is the best or only example you need; you might even strengthen your case by including others, if that is the best way to make your point.
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