I tend to operate by the old adage, “It’s better to beg forgiveness than ask permission,” provided my actions are well-reasoned. But when it comes to using copyright-protected work, that rule is not such a great idea. Use of another person’s words, photographs, charts, illustrations, or recordings in our own creative work brings with it the potential to infringe someone’s copyright, unless a license or permission has been granted.
Recently, a reader of our blog noted they had searched the internet for information about copyright permissions only to find most on-line information covered when a license or permission was needed, but not how to request it. If you understand copyright permissions already, but need to know how to proceed, skip to section B below. If you want a general tutorial about copyright permissions, then read on.
A. Copyright Permissions
What is it?
U.S. copyright law provides the creators of literary, dramatic, musical, and artistic work the exclusive right to control the use of that work. These rights include the right to reproduce, distribute, adapt, perform, and display the work. The copyright owner can transfer all or some of these rights to another person or entity. The legal mechanism for such a transfer is a license or copyright permission, which defines how the copyright-protected work can be used and whether payment is required.
When you obtain permission to use someone’s creative work, you are obtaining the ability to use that work for a specified purpose as defined in the license. The grant of rights in the license may be broad or limited, exclusive or non-exclusive. For example, a license to the entire scope of rights held by the copyright owner would be broad. A license would be limited if narrowly tailored by things like market, language, territory, and time. If you and only you are granted a particular right to use the creative work, then the grant is exclusive. If others can be granted the same right as you, the grant is non-exclusive. Licenses tend to be more formal than permissions. Exclusive licenses tend to be more valuable and costly than nonexclusive licenses. Permissions tend to be non-exclusive.
Why do you need a license or copyright permission?
If you use copyright-protected material without the owner’s permission, the copyright owner can sue and obtain compensation for any losses suffered. In other words, not obtaining permission could expose you to legal risks like copyright infringement. Whether you are going to self-publish or go the traditional route, it makes sense before publishing to secure the appropriate permissions to immunize yourself and/or your publisher from potential liability. In fact, publishers will require written permissions before publication.
When to seek permission.
Copyright permissions are generally required when you use another’s copyright-protected work in your own (whether you quote, excerpt, or reproduce). Common guidelines for needing permission are whether you use a substantial or material portion of a copyright-protected work, or you use any portion of the copyright-protected work that might harm the market for the creator of that work.
In some instances, you may not need permission (so I guess my rule of asking forgiveness rather than seeking permission does apply). You do not need permission to use another’s creative work if the work is in the public domain. You do not need permission if your use of the copyright-protected work falls within the fair use limitations.
1. Public Domain
Creative work enters the public domain when the creator gives up the rights to the work, or the copyright expires. Under these scenarios, no permission is needed to use the creative work. In the U.S., an author retains the copyright to their work for their life plus 70 years following their death. If the work is published anonymously, the copyright will last for 95 years from publication or 120 years from creation (whichever is shorter). For example, books by Jane Austen, classical music by Bach, paintings by Leonardo da Vinci, or plays by Shakespeare are in the public domain (although recreations of these may not be).
Likewise, U.S. government works are in the public domain and do not require permission.
2. Fair Use
U.S. copyright law provides a few limitations on the copyright owner’s exclusive rights in their creative work. These exceptions are known as “fair use.” Generally, something is considered fair use if the use is for purpose of criticism, parody, news reporting, classroom teaching, scholarship, or research. The fair use privilege allows the use of someone’s copyright-protected work without permission. The most common example of fair use includes brief quotations in a review or scholarly work, or copying for educational purposes.
There is no bright line rule as to what qualifies as fair use. To determine if the fair use exception applies, courts consider four factors:
1. The purpose and character of the use;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used; and
4. The effect on the market of the copyrighted work.
While all factors are not equally important in every case, all should be considered when making a determination if fair use applies to the infringing work in question. Courts tend to place considerable weight on factor four.
Factor one centers on whether the use of the copyright-protected material was for criticism, comment, news reporting, and teaching. But it also covers use of the copyright-protected material for parody, satire, and derivative work that is transformative (i.e., the original is transformed by adding new things to the work). The more transformative a work, the less important the other factors are, and the stronger the fair use claim becomes. Courts also look at whether the use of the copyright-protected work was commercial or non-commercial, and if the motives for using the work were in bad faith. If the use is for non-commercial purposes, then the fair use exception is stronger.
Factor two considers the level of creativity of the copyright-protected work. The higher the creativity (think fiction, prose, poems, song lyrics, photographs, and other visual works), the stronger the copyright protection and need for permission. Where as the more factual a creative work (think news reports), the weaker the copyright protection and need for permission.
Factor three focuses on the amount of the material copied and whether it is a key element of the copyright-protected work. Generally, the larger the portion of material used, the less likely such use will be deemed fair. Likewise, the more germane the copied portion is to the source, the less likely fair use would apply. If the quote or excerpt is minimal, then credit without permission might suffice. Unfortunately, there is no percentage or word count guideline. Some say 200-300 words from a book-length work constitutes fair. But when the work is small, like song lyrics and poetry, even one line without permission is risky.
Factor four involves the effect on the market for the original work. The larger the impact, the less likely fair use applies and vise-versa.
Remember, fair use is a defense to copyright infringement, meaning you must be sued to assert fair use. Here are two articles about fair use if you need more information: US Copyright Office and Stanford University.
B. How To Obtain Copyright Permission
If fair use does not apply, or the work in question is not in the public domain, seek permission. The process can be long, but it is fairly easy. Be aware, the copyright owner may say no to your request, or charge a fee. Permissions tend to be straightforward, inexpensive, and quicker to obtain. Licenses are more complex, expensive, and can be time-consuming.
If you do not want to seek permission yourself, use an online permission specialist (like the Copyright Clearance Center) who can find, contact, and secure permission for you. Or hire a qualified Intellectual Property attorney.
Determine who owns the copyright.
In order to ask permission, you must know who owns the copyright in the work. This will either be the creator of the work (like the author), the person or entity that licensed the rights (like a publisher), or the person or entity who had the work created in a work-for-hire context (like an employer). The best place to start is the formal copyright notice on the work. Look for the symbol © (or ℗ for sound recordings). For example, Matt Knight © 2017 or Sidebar Saturdays © 2017.
While copyright notices are not required, most creative works display a notice.
Contact the copyright owner.
Start with the person listed on the copyright notice. If they do not own the copyright (because they have licensed or sold the rights), they should be able to direct you to the person who does. If the creative work is a published book, usually the publisher will be the entity to contact. Locating the owner may not be easy, especially if the work is out of print. If so, try the US Copyright Office in case the work was registered, or you can hire a professional copyright search firm (like the Copyright Clearance Center), or an Intellectual Property attorney. This article by Lloyd Jassin lists useful links for locating copyright holders.
You can contact the owner via email, letter, or telephone. I would be more inclined to email or telephone, depending on what contact information I located. You will want to tell the owner who you are and that you are seeking permission to use their copyright-protected work in your own. Explain how you intend to use the work and where it will appear. Then ask if they would grant you permission to do so. You can use the sample permission letter below (edited as necessary) to draft your permission request. If the copyright owner agrees to provide permission, proceed to the next step and follow-up with a written permission letter. You may need to draft your own permission letter, unless the copyright owner already has one. Publishers often provide permission letters to their authors. Music labels too. All drafted by their licensing departments.
Secure a written license or permission.
There is no standard template when requesting permission. Below are items you should include in your letter, of which many will be used in the initial contact with the copyright owner.
1. Your name and name of the copyright owner.
2. The copyright-protected work you wish to use (provide clear identifiers: title, date of publication, ISBN, URL for website, etc.). If appropriate, include a photocopy of the copyright-protected work.
3. Purpose for using the copyright-protected work (be specific about the intended purpose: research, educational, criticism, review, etc.).
4. How you expect to use the copyright protected work. Be specific about the intended use: include page number, the portion you intend to use, if you intend to alter the work, where the work will appear, the intended audience or recipients, and what format will be used, like photocopied, scanned, re-typed, etc. Provide the title of your creative work and the publisher (if applicable).
5. The scope of rights you need – territories, languages, markets, formats and mediums. Keep it simple.
5. Publication or use date.
6. Length of time you intend to use the work (usually the full term of the copyright).
7. Confirm that credit or acknowledgement shall be given.
8. Payment, if any, for the granted permission or license.
Obtain a signed copy of the permission, either hardcopy (do not forget to include a self-addressed stamped envelope) or a scanned-email version (do not forget to include your email address).
Remember, seeking and granting permission is not a standard process, so be prepared to negotiate. Make sure the permissions granted cover the rights you need. If you use the copyright-protected material outside the granted permission, you will have infringed the copyright and may be subject to legal action. If a payment is requested and unpaid, the copyright owner can terminate the permission.
Immunize yourself against potential legal liability by securing copyright permission before you use someone’s copyright-protected work. An ounce of prevention is worth avoiding copyright infringement. If you are uncomfortable with the process of obtaining permission, hire a qualified attorney or permissions specialists.
Legal Disclaimer: The information in this article is for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer, who is also a lawyer, helping other fellow writers learn about publishing law related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. You can read our full Sidebar Saturdays legal disclaimer here.
Sample Permissions Letter
Re: Permission to use [X] creative work
Dear Copyright Owner,
Per our recent conversation, you are the copyright owner of [X] work [include specific identifiers for the copyright-protected work]. I am currently creating [provide details of your creative work] and would like permission to use your copyright-protected work in my project. I intend to use [X] work [describe the purpose, how the work will be used, where it will appear, the intended recipients or audience, what format you will use, and date of publication or use]. A standard acknowledgement to you will be included in published creative work (unless you have a special credit line you prefer).
You hereby grant me a non-exclusive [or exclusive if applicable] right to use the above referenced copyright-protected material worldwide [or list territories] as follows: [list the intended use and any other pertinent information, like what markets and formats] for the full term of the copyright.
[If payment has been agreed upon, acknowledge the sum, where the payment should be sent, and that payment will be made upon publication of the work, or within six months of signing the agreement, whichever is earlier].
Please sign a copy of this permission letter and return it via mail in the enclosed self-addressed stamped envelope. Or you may sign, scan and email the permission letter to me at [email address].
Agreed and Accepted:
I warrant that I own the copyright in [X] work and have the right to, and do hereby, grant [your name] the permission to use the copyright-protected work as specified above.
[Copyright Owner’s Name]