Do You Need Permission?
By Daniel Steven
One of the most frequently asked questions by writers is “When do I need permission to use someone else’s material in my work?” The simple answer is “Whenever the failure to seek permission will result in copyright infringement.”
What constitutes infringement?
Since 1976, U.S. copyright is automatic when an original work-- text, art, photos or music-- is created and fixed in a copy or recorded for the first time. Neither registration nor copyright notice is required. Reproducing someone's copyrighted work without their permission is known as infringement, and you can be sued for this violation. Simply giving credit or attribution to the author or photographer, without having permission, is still infringement. (By the way, copyright law applies to Internet web pages in the same manner as any other form of publication.)
It is safest to assume, therefore, that you must get permission from the copyright owner for all material– text, quotes, photographs, artwork-- unless the material falls into one of the following two narrow categories:
1. Public domain material. Public domain material includes items that cannot be copyrighted (ideas, titles, names, short phrases, and slogans); works whose copyright expired and/or was not renewed (including all work created before January 1, 1923); most federal government documents (but not those created by private contractors); and many state government documents and publications.
2. Fair Use. You don’t need permission if your use of the material qualifies as “fair use” under Section 107 of the Copyright Act, which provides that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords...
for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
Four factors are to be considered in order to determine whether a specific action is to be considered a "fair use:” (a) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work.
Unfortunately, the interpretation of these factors often is difficult and leads to conflicting results. In general, however, fair use always is a short excerpt used in connection with genuine criticism, parody, or teaching. Use of material in a review or scholarly article is fair use; use in most other articles and books usually is not. (For example, quoting a politician in a political column is fair use; including lyrics from the Rolling Stones in your novel is not.)
How do I discover the copyright owner to get permission?
In theory, getting permission should be easy – just find out who owns the copyright and ask. In practice, however, it can be tough. Publishers are easier to track down than authors, and they usually can put you in touch with the author. Libraries have many directories available, such as the Literary Marketplace, to help you find publisher’s names and addresses. The U.S. Copyright Office also will research copyright ownership for a fee.
What if I can’t find out who the copyright owner is?
The simple answer is, you can’t use the material. It’s no defense in an infringement claim that you couldn’t locate the author. Instead, try to find some other excerpt that suits your purpose.
When seeking permission, what do I ask the copyright owner?
In some cases, the publisher or copyright owner will have their own form for you to complete. Otherwise, you’ll need to give 1) a complete description of the material to be used, including the precise portion of the material, pages, and/or photographs; 2) a description of how the material will be used, and in what media; 3) a description of how the material will be marketed, distributed, or sold; and 4) a place for the owner to sign their consent and an SASE for return.
If the copyright owner doesn’t respond, don’t take this as permission. You’ll have to follow up until you get a response.
Will there be a fee?
Many copyright owners use licensing agencies to handle permissions, such as the Copyright Clearance Center (see
below, Permission Sources). Unfortunately, getting permission from an agency usually involves paying at least a nominal fee. In many cases there will be no fee, or a nominal fee charged by the owner, but in other cases the fee will be prohibitive for your projected use. If so, find some other materials that will serve your purpose.
Permission Sources
Print Materials:
Copyright Clearance Center (CCC)
222 Rosewood Drive
Danvers, Maryland 01923
http://www.copyright.com
Although mainly for academic material, the CCC provides licensing for copyrighted materials in print and electronic form.
iCopyright.com
http://icopyright.com/
Provides licensing of digital content
The Authors' Registry
http://www.webcom.com/registry/
National Writers Union
http://www.nwu.org
Places to locate authors:
U.S. Copyright Office, Library of Congress
http://www.copyright.gov/>
Where you can research registered copyrights:
Music Publishing Rights (to use song lyrics):
American Society of Composers, Authors, and Publishers (ASCAP)
http://www.ascap.com/index.html
Broadcast Music Incorporated (BMI)
http://www.bmi.com/home.asp
The Harry Fox Agency, Inc. (HFA)
Established by the National Music Publishers' Association, Inc.
http://www.nmpa.org/hfa.html
SESAC
http://www.sesac.com/
Dramatic Works:
Samuel French, Inc.
45 West 25th Street
NY, NY 10010-2751
(212) 206-8990
(212) 206-1429 Fax
http://www.samuelfrench.com/
Dramatists Play Services, Inc.
440 Park Avenue South
NY, NY 10016
(212) 683-8960
(212) 213-1539 Fax
http://www.dramatists.com
Music Theatre International (Major musicals)
545 Eighth Avenue
NY, NY 10018-4307
(212) 868-6668
(212) 643-8465 Fax
http://www.mtishows.com/
© 2003 Daniel Steven
Daniel Steven is a lawyer practicing publishing, entertainment, and media law in Rockville, Maryland. He helps writers with contracts, general business law, employment issues, wills and trusts. He has worked as an editor, counsel, and executive at a major publishing house and is the author of two novels published by HarperCollins, plus a non-fiction book. He can be reached at
dsteven@publishlawyer.com or by phone at 301-424-0677.
