Many independent publishers give published material away for nothing if it meets a more or less arbitrary benchmark they have set for fair use and therefore, in their view, does not require permission or a fee. This finding comes from an admittedly unscientific survey of the published permissions policies of a couple of dozen publishers. They set the mark at 500 or 400 or 300 or 250 words, and so on down the scale. One publisher’s policy was to make an entire chapter free, regardless of how many words it contained.
In my view, all these publishers are misguided, and for two primary reasons.
First, US copyright law does not establish a bright-line test for what does or does not qualify as a fair use. Each case is decided on its own unique facts, taking into consideration the four factors set forth in the part of the copyright statute that deals with fair use, Section 107.
Those four factors are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the copyrightedwork as a whole
- the effect of the use upon the potential market for or value of the copyrighted work
(For more about fair use, see “Fair Use and Other Aspects of Coping with Copyright Law,” June 2011.)
Second, it seems foolish to focus on how much of your publishing assets the public may take without asking—especially since the answer isn’t clear from settled law—when you could be focusing on the fact that someone is interested in some of those assets and figuring out how to maximize their value.
Payoffs for Better Permissions Policy
Instead of treating permissions requests as a burden to be avoided when possible, consider building a robust permissions and licensing program that will not only be good for your bottom line, but that will also strengthen your copyright portfolio.
More specifically, a well-conceived permissions and licensing program will:
Generate another revenue stream with little additional cost. There is no cost of goods sold and little direct cost or overhead associated with an efficient permissions program. Think of it as a way of squeezing additional revenue out of already acquired assets.
Aid in the promotion of your core product. Extracts from your published works reproduced in other products sold by other publishers can serve as teasers and create a pull-through demand for full copies of the source material.
Create evidence of a market for licenses and permissions. The fourth fair use factor concerns the impact of a use on the potential market for your work. You will be better able to overcome a fair use defense by an unlicensed user of your material if you have evidence, in the form of a robust permissions program, that you are in the business of selling license and reprint rights, so that uses without your consent deprive you of the revenue these sales would otherwise generate.
Create evidence of a lawful alternative. You will also be better able to overcome a fair use defense if you have evidence that you have made an accessible alternative to reliance on fair use available at a reasonable cost. At least one U.S. appellate court has said that a copyright owner’s claim of displaced licensing revenue will not carry much weight if the unlicensed user has filled a market niche that the copyright owner simply had no interest in occupying (with lack of interest evidenced by a lack of licensing or permissions activity).
Create evidence of a market price for damages calculations. Your claim to have been financially damaged by an infringer who has used a portion of work you published without a license or consent will be speculative unless you can produce evidence of the value of the license “displaced.” One good way to do this is with reference to a history of licenses actually granted.
First and foremost, promote your permissions services.
Include information about your policy on your Web site and make it easy for people to submit requests online. Also describe your permissions policy in your catalog, and include a permissions request form or request-for-quote form that customers can fill out and fax or email.
Include a statement about permissions on the copyright page of each of your books directing readers to your Web site, your catalog, or your permissions person or department via a phone number and/or an email address.
Grant rights only as they will be exploited, one edition of the work at a time.
Insist that each requestor identify the work in which your excerpt will be used by title, by edition, by language, and by form/medium (hardcover, softcover, mass market, e-book format, etc.).
Ask the requestor to tell you the price, the size of the first print run, and the projected life-of-edition sales of the work in which your excerpt will be used. This information will help you establish an appropriate fee for the requested grant. (See below for ideas on how to set the fee.)
Make your grant of permission in writing on a form developed by you, and make it contingent on compliance with the following conditions:
- The grant of permission should extend to only one edition of the new work and should not extend to use in any other edition, revision, version, or translation.
- The grant of permission should exclude any quotations or illustrations identified in the selection as having been reprinted by permission of a third party.
- The selection should be faithfully reproduced and should not be changed, added to, or deleted from except with your prior approval.
- Each copy of the new work should include a notice of copyright, printed in proximity to the selection or on a separate acknowledgment page, in the following form: Copyright © 20__ by [your company name, or your author’s if the author holds the copyrights]. Reprinted by permission of [your company name and contact info].
- The permissions fee should be paid upon publication or within six months of the date of this grant of permission, whichever first occurs.
- Upon publication, requestor should provide you with two complimentary copies of the new work (one copy so that you will know when the new work has been published and can check that a proper credit line was included; and one copy to send to your author, because authors are flattered to know when they’ve been quoted).
- The grant should expire automatically seven (or fewer, as you prefer) years from the date of publication of the new work, or if it isn’t published within two years of the date of your grant, or if (once published) it is allowed to remain out of print for six consecutive months.
In addition, make sure that the publishing contract you use with your authors has language adequate in the age of e-books to distinguish the permissions and subrights licensing revenue streams from the e-book revenues (for more about this, see “Contract Updates for the E-Book Era,” August 2010).
Each book, and each extract from it, has a unique value, both in the marketplace and in the context in which it is proposed to be used.
By definition, the work has been published, so it has already passed muster in your eyes as a publishable work. Moreover, the requestor has sought to reproduce a portion of it rather than write new copy, presumably because of who said it or how well it was said. So there’s really no reason to set your fee at less than the $1 to $2 per word that people would probably have to pay for commissioned, publishable work.
You should take into account how substantial an extract it is—not only quantitatively, but also qualitatively. Is it the kernel of Gerald Ford’s rationale for pardoning Richard Nixon, or is it two paragraphs of a historian’s garden-variety account of an event that a dozen other sources describe too?
Factor in the commercial value and popularity of the book from which the material is to be taken as well as the projected value and success of the work in which its use is proposed, and fit all this into the pattern of other permissions you have priced.
At the end of the day, the value of the rights requested is what a willing seller and a willing buyer can agree to. But the value of a well-designed and -executed permissions program will be greater than the revenue it drops to your bottom line; it will also enhance the value and enforceability of your entire collection of copyrighted material.
Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for 30 years. He is a member of IBPA and a frequent contributor to the Independent. For more information: firstname.lastname@example.org; 513/241-2324.