Copyright Permissions and How to Secure Them
by Lee Wilson
Copyright owners are given a monopoly on the use of their works to encourage them to create. Under the United States copyright statute, the creator of a copyrighted work has the exclusive right to:
• copy or reproduce the work
• prepare alternate or “derivative” versions of the work
• distribute and sell copies of the work
• perform or display the work publicly
Usually these rights may be exercised only by the author of the work or by a person to whom the author has sold or licensed one or more of these “exclusive rights.” Copyright infringement is the unauthorized exercise of any of the exclusive rights.
Would-be users of copyrighted material often find it hard to understand that copyright owners control both how and whether others use their works, and that this control is almost absolute. That means you must seek permission from any copyright owner whose work you want to use. Permissions to use copyrighted works are called either permissions or licenses.
The information in this article won’t do you any good if you forget that you will need a permission. Too often, someone researching a book fails to make good notes about the source of a photo or quoted text or poem, and it ends up in the finished project without permission and without attribution. Both the author and the publisher can become defendants in a lawsuit when this happens.
In most cases, you yourself can determine whether you need a permission and, if you do, you can secure it yourself. Although copyright owners have no obligation to allow you to use their works, many are happy to do so. And if your request is denied or the use fee is too high, you may be able to eliminate the need for a permission by reducing your use of the copyrighted work to a “fair use” (see “An Introduction to ‘Fair Use,’” in this issue).
Except in a very few instances involving musical compositions, no fixed fees are prescribed by the copyright statute or the Copyright Office or otherwise for the right to use copyrighted works. This lack of universal standards means that each request for a permission can lead to a negotiation with almost no parameters—in some cases, the only standard for what a copyright owner can charge for a copyright license is what the traffic will bear.
Steps Toward Success with Permissions
The permissions process can be tedious and time consuming. But there are ways to make the process simpler. Here are a few tips.
•Start by determining whether the work you want to use is still protected by copyright, has fallen into the public domain, or will soon fall into it. If you find that copyright protection for the work will expire soon, perhaps you can simply wait until it does expire.
Read the Copyright Office’s publications “Duration of Copyright” and “How to Investigate the Copyright Status of a Work” for information on determining the copyright status of a work (clicking on Circulars and Brochures under Publications at copyright.gov will take you to a long list of very useful free publications that you can download). Another reliable tool is the Cornell Copyright Duration Chart, available at copyright.cornell.edu/public domain.
To be sure that a work is, indeed, in the public domain before using it without permission, you may want to determine its status by redundant means.
•Determine exactly what rights you need. Narrowing your request to obtain only those rights can save you money. It may be useful to come up with two possible approaches to using a work—what is the minimum you need, and what is the maximum you could use? Do you want to reprint the entire scientific paper, or would reproducing the chart on page 11 suffice? Do you want to use the photograph on the cover of your book, or as an illustration inside?
Attention to this issue can sometimes eliminate the need for a permission altogether—perhaps the portion of the copyrighted work that you really need to use is so small as to qualify your proposed use as a fair use of the work.
•Decide whether to ask for an exclusive license or a nonexclusive license. An exclusive license gives permission to use a copyrighted work and provides that no other similar license to use the work will be granted to anyone else. For obvious reasons, an exclusive license usually costs more than a nonexclusive license, which gives a permission to use a copyrighted work without the limitation that no other similar license to use the work will be granted to anyone else.
Exclusive licenses of copyright have to be in writing to be effective. Nonexclusive licenses of copyright do not. You can tell a friend, “I’ll let you use my photograph of a sunset as the background for your public-service television ad, and I won’t even charge you for the use.” This would give your friend the right to use the photograph in the way you specify. However, your friend may want to remember that nonexclusive licenses of copyright granted in this way (i.e., verbally) are also terminable at will, which means that you can terminate the permission at any time.
It’s far better to get a written document outlining the terms of any license, even a nonexclusive one, to make sure that everyone involved understands just what has been agreed.
•Find where and to whom to send your permissions request. It may be all but impossible to trace the copyright owner for an unpublished work, but a published work will almost certainly bear some information about the publisher and/or the copyright owner. If you know the title of the work or the name of the author, start with the Copyright Office.
Go to copyright.gov/records to search the registration and ownership records for books, music, films, sound recordings, maps, software, photos, art, multimedia works, periodicals, magazines, journals, and newspapers recorded since 1978. Two Copyright Office publications, available at copyright.gov, will give you more information about searching Copyright Office records: “How to Investigate the Copyright Status of a Work,” and “The Copyright Card Catalog and the Online Files of the Copyright Office.”
Another excellent resource for tracking copyright owners is the “Getting Permission” source list maintained by the University of Texas at Austin at utsystem.edu/ogc/intellectualproperty/permissn.htm. This site offers links to organizations that can grant permission to use all sorts of copyrighted works or give you the information you need to find the right person or company to ask for permission. (Many online sites give information about copyright clearance; the best of them are operated by universities.)
•Use a letter to secure permission. The simplest form for requesting a permission is a letter that includes a space at the bottom for the “countersignature” of the person who is in a position to grant your request to use the copyrighted work.
If all the terms of the proposed permission are stated unambiguously in the body of the letter, the signature of the person to whom the letter is addressed will transform the letter into a binding agreement.
•Make your permission request letter polite and deferential. And remember that even though many requests are granted without charge, offering even a small payment may increase your chances of getting permission.
•Save the permissions you obtain in a file. Never exceed the permission granted. Never use any material for which permission has been denied. And remember that using unpublished works without permission is especially dangerous, whether or not the use is minimal, and that even close paraphrasing of such materials may be actionable. The law protects the privacy of people who do not wish to make their writings public.
Don’t Skip These Steps
Many infringements result from a would-be user’s inability to understand the word No—or from the reluctance, for whatever reason, to ask for permission to use the copyrighted work in the first place.
Asking for permission to use a copyrighted work is an art. That’s because you may need to call on everything you know about copyright and everything you know about diplomacy to make your request properly and enhance your chances of getting the permission you need. Seeking and securing permissions is as necessary to publishing as getting bids for printing. And it’s easier to accomplish once you have the right information.
Lee Wilson is an intellectual property lawyer. Her most recent book, Fair Use, Free Use, and Use by Permission: Using and Licensing Copyrights in All Media (Allworth Press), contains detailed information about fair use, a fair-use checklist, sample permissions letters, and extensive guidelines for seeking copyright permissions.
An Introduction to “Fair Use”
Fair use is a kind of public policy exception to the usual standard for determining copyright infringement; because of a countervailing public interest, an infringing use of a copyrighted work is permitted and is not called infringement. Any use that is deemed by the law to be “fair” typically creates some social, cultural, or political benefit that outweighs any resulting harm to the copyright owner.
Fair use in any commercial setting, such as book publishing, is hard to claim, so claimed “fair” uses should be investigated carefully before publication; get a lawyer to evaluate any use that you are not completely convinced is “fair.”
The factors that courts must consider in determining whether the use of a copyrighted work is a fair use are enumerated in Section 107 of the U.S. copyright statute, which says:
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted
work as a whole
4. The effect of the use upon the potential market for or value of the
For more guidance about fair use, visit ibpa-online.org; click on Newsletter Articles in the navigation box on the Home page and search for “How to Make Smart Fair-Use Decisions: Learn the Law and Apply the Examples” by Lee Wilson.