When is it fair use to quote research from Gartner or Forrester?

When independent analyst Zeus Kerravala wrote up his own analysis of a Gartner “Magic Quadrant” review of vendors offering Contact Center as a Service (CCaaS), Gartner insisted that his use of their graphic was a copyright violation. He ended up taking down the post.

But the case raises an interesting question: can subscription-based research companies like Gartner and Forrester use copyright rules to block people from quoting their analysts and their research? In what cases can they enforce those rights, and when are such uses allowed by the fair use provisions of copyright law?

Disclosure: almost 10 years ago, I was a Forrester analyst, and I respect the company and its analysts. But that former affiliation isn’t a big part of what I do now.

Why research companies have citation policies

Gartner’s published citation policy is here. Forrester’s is here. Both policies are written as if they apply to everyone, although there are different rules for news media. But a company policy cannot overrule federal copyright law.

It’s important to understand the research companies’ interests here. To obtain Gartner or Forrester research reports, you must pay them to become a subscriber, and the subscriptions cost thousands of dollars. So they have an interest in ensuring that non-subscribers can’t rip off and post their research, just as anyone else who sells copyrighted content would do.

There is a particular sensitivity to the sharing of research that compares vendors, like Gartner’s Magic Quadrant (MQ) and Forrester’s Wave. Vendors have an interest in appearing favorably in such comparisons, and of shouting about it if they are cited favorably. But Forrester and Gartner want to ensure that quotes about vendors are not taken out of context to imply that the research company endorses a vendor. (These independent research companies never endorse any vendor — the simply analyze how those vendors stack up against others for specific needs — and they zealously protect that reputation for independence.)

They most avidly protect the actual Magic Quadrant and Wave graphics comparing the vendors. The motivation here is that the graphic represents many hours of expert work and should only be available to people who’ve paid for the subscription. So you will never see an unlicensed Magic Quadrant, Wave, or similar vendor comparison graphic in another company’s materials.

For similar reasons, research companies would prefer to prevent companies from quoting pieces of their research reports. But as I’ll show, it’s much harder for them to enforce this ban.

Research companies will also license their research to companies, who can then make that research available for download. If you ever see a report posted on a company site as “Free Gartner Report” or “Free Forrester Report,” that’s almost certainly how that happened. The company got a favorable review, then paid a license to allow anyone to download the report after submitting their email. Those free downloads both boost the company’s reputation and generate leads for the vendor.

News media operate under different rules. Research companies like to have their analysts quoted in media, since it bolsters their reputation as experts. In fact, the PR departments of research companies will often send reports to news media as a means of spreading influence. Reporters also often interview analysts and quote them. (At one time, when I was an analyst covering the television industry, I was the most widely quoted technology analyst in the world.)

I’ve never seen a research company sue a legitimate news source that quoted them accurately.

To sum all of this up: research companies want to prevent vendors from quoting their proprietary research in ways that benefit the vendor and imply an endorsement, but they do want their analysts to be perceived as experts quoted often in media.

How research companies enforce their citation policies

If you are a client of Forrester or Gartner, you sign a client agreement. The agreement says that you must obey their citations policy. The research companies enforce these policy restrictions by, for example, completely banning citations for vendors who violate their policies. Since vendor companies really don’t want to run afoul of these powerful research companies, they obey these restrictions, including not posting the vendor comparison graphics. As a result, the research companies can enforce their rules with vendors and preserve the value of their proprietary research within that community.

If you are a media source, they generally don’t enforce the restrictions. But they still won’t let you post a vendor comparison graphic, which they’ll treat as a copyright violation. And media know better than to post other people’s copyrighted graphics.

But what happens if you are neither a client nor a media company? That’s the situation that Zeus Kerravala was in.

According to the retired IP lawyer Barry Stuart, currently COO of the research industry observer firm Sage Circle, the graphic that Kerravala cited was covered by fair use and Gartner had no legitimate grounds to block it. Stuart analyzed the fair use rules this way:

Let’s examine the four key [fair use] factors:

1. Purpose and character of use: Zeus’s post was clearly transformative, adding substantial original analysis and criticism
2. Nature of copyrighted work: The [Magic Quadrant (MQ)] is factual rather than creative work, which typically receives less protection
3. Amount used: Only the specific relevant MQ diagram was shared, not extensive portions of Gartner’s research
4. Effect on potential market: The analysis was unlikely to substitute for Gartner’s commercial services

Given the effort that goes into creating these Magic Quadrants, Gartner would certainly disagree. The graphic was posted verbatim; it represented an opinion, not facts; it was the core of Gartner’s offering, reflecting nearly the whole of the research; and companies comparing vendors but unwilling to subscribe to Gartner will sometimes use that graphic to substitute for the full research. So the fair use argument is flawed.

In my own work of writing books and articles, I’ve always assumed that you can’t just copy and paste a copyrighted graphic from a copyrighted source; you need to get permission. Despite Stuart’s expertise, I think Gartner is within its rights to block this graphic, especially since Kerrevala is arguably a competitor.

Are quotes from reports fair use?

What happens if a non-client wants to quote an analyst regarding their opinion in some market? Quoting a sentence or two from a copyrighted source, rather than a graphic, would normally be considered fair use.

But if the quote comes from a research company’s reports or blogs, the research companies would like to prevent that.

Gartner says:

Companies who wish to reproduce Gartner content or graphics (any Gartner copyrighted materials, including that which is already in the public domain such as a press release), must submit their request via the online Content Compliance submission form. 

And also:

You must have legitimate access to the Gartner content you want to display or quote to receive approval. If you are a licensed client or are quoting from a licensed reprint, you have legitimate access to Gartner client-only research. Everyone has legitimate access to externally facing Gartner content (for example, Gartner press releases, Smarter With Gartner posts, and Gartner Peer Insights reviews and ratings).

So if you downloaded a free report, you have legitimate access, but they still want to stop you from quoting it without permission. And if you got access some other way (for example, a client shared it with you under the table, or an analyst secretly slipped you a copy, or a news media source passed it along) and you’re not a client, there’s not much they can do to stop you from quoting it.

Forrester says:

• All use of Forrester Research is subject to our review and approval (except for the press and clients in limited form).
• Citation of Forrester’s Research is a client privilege reserved for Forrester clients and companies that have purchased a license for the specific Syndicated Research they are citing. Forrester reviews all non-client requests on a case-by-case basis.

The same applies. If you’re not a client, they can insist that you comply with their rules, but if not, they don’t have much recourse.

Please don’t act on what I’ve written here without checking with a lawyer. But from where I sit, if you’re not a client and want to quote a report, that sure looks like fair use to me.