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Fourteen Permissions Caveats, Curveballs, and Nasty Little Secrets

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by John B. McHugh, author of Permissions Management for Requesters and Granters

Seeking permissions is an activity filled with many interesting surprises. Maintain a healthy sense of skepticism when you seek permissions so that you will not be unpleasantly surprised.

To help you navigate some of the more “tricky currents” inherent in permissions work, I offer the following 14 suggestions.

1) Remember copyright attorney Lloyd Jassin’s axiom: “There is no free speech, only fee speech.”

2) Ask “Do I really need to request permission to use this material?”

3) Remember “more is less.” Ask only for those rights you need.

4) Always get the permission IN WRITING!

5) Recognize that in some instances both author and publisher will need to grant permission.

6) Don’t assume that “out-of-print” means “public domain.”

7) Watch for “Third-Party Content.” The copyright holder of the major work may not hold rights to a portion of the material for which they received permissions from another copyright owner.

8) Alertness for possible “Third-Party Content” will protect you from”embedded copyright,” i.e., copyrighted material not readily apparent on the surface.

9) Beware of “Thin Copyright.” Thin Copyright describes a situation when the apparent copyright holder may in fact not be authorized to grant permission. For example, a photographer may hold copyright to a transparency of a Picasso painting, but the ultimate copyright is vested in the Picasso estate.

10) Being alert for the Thin Copyright scenario may save you from the “False Positive” trap, i.e., when the grantor doesn’t hold copyright and
cannot grant you unencumbered permission.

11) Note that some permissions are subject to professional standards, i.e., the content of client interviews by psychologists and psychiatrists may be privileged information and be subject to a release from the client.

12) Never grant “online” rights without requiring a precise definition of the meaning of “online” rights. Grant only nonexclusive rights for a specific term, i.e., set a time limit on the license.

13) Remember courts assume that the rights belong to the creator or author in the absence of any evidence to the contrary.

14) “Good faith efforts” will not protect you from the consequences of copyright infringement if you have in fact infringed another’s copyright.

Copyright ©1996 by John B. McHugh. All rights reserved.

Reprinted from PERMISSIONS MANAGEMENT FOR REQUESTERS AND GRANTERS by John B. McHugh. To contact McHugh, call 414/351-3056 or write to him at 5747 N. Ames, Glendale, WI 53209.

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