Question. Under what circumstances does referencing a copyrighted fictional work in an unrelated commercial educational product constitute fair use?

For example, suppose the copyrighted work is Star Wars, and suppose the unrelated area being taught is lesbian dance theory.

In increasing level of egregiousness, an educational product might:

  1. Use a word specific to the work. E.g. referring to the best practitioners in the world as the "Jedi" of lesbian dance theory.

  2. Refer to characters from the work. E.g. "These people are like the Master Yoda's of lesbian dance theory."

  3. Refer to plot points from the work. E.g. "Remember when Luke wants to run off to fight Vader, but Yoda cautions him that he is not ready? He ends up a losing a hand because of that. The reality is, a lot of people want to run off and create a great lesbian dance after a 1 month intensive, but most of them aren't ready."

  4. Quote the work. E.g. "Remember how Yoda said: Do, or do not. There is not try. Well, the same advice applies to learning lesbian dance theory."

Would these fall under fair use? Are there any notable cases where someone did one of these and had their fair-use defense rejected?

  • Only 1 of your examples is an example of copying a work. For example, referring to a work is not a copy. Using a word such as "Jedi" is not a copy. Your example 3 describes a certain scene of a work without copying. Quotation (example 4) might be seen as a copy, but it is so short "Do, or do not. There is no try." Your example 4 is the only example that involves copying and is addressed here: Using short quotes from published, well-known literary works in a product – Brandin Nov 8 '19 at 8:32
  • Under this hypothetical setup, I think all of them are likely trivial (either no copying or de minimis copying). – xuhdev Nov 8 '19 at 8:58
  • Hello! Welcome to Law.SE. Plese read our tour page. – isakbob Nov 8 '19 at 16:30
  • 1
    @isakbob, hey, thanks for the link. Is there something in particular you wanted me to see in the tour page? Mostly this just seems like every other stack exchange website, at least insofar as the basic mechanics and principles of the site are the same. – goblin GONE Nov 11 '19 at 13:29
  • You're welcome. This seems like a question that might lead to a "list" answer. What makes me think that is the "notable cases" aspect of the question (answers might lead to people providing lists of cases). Otherwise it's a well thought out question. – isakbob Nov 11 '19 at 15:54

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Browse other questions tagged or ask your own question.