This article is adapted from Lee Wilson’s recently published book, The Copyright Guide: A Friendly Handbook for Protecting and Profiting from Copyrights, published by Allworth Press of New York (www.allworth.com).

One of the realities of copyright that is often very difficult for would-be copyright users to understand is that copyright owners control almost absolutely both how and whether their works are used by others. There are only a few exceptions to this rule; the most important such exceptions in the U.S. are called compulsory licenses. For instance, if your song has been recorded previously with your permission and the recording was distributed in the form of phonorecords to the public within the United States, anyone can issue another recording of the song, subject only to the obligations imposed by law to notify you in advance of releasing the new phonorecord, to pay you royalties at a prescribed rate, and to furnish you with monthly royalty statements. This provision of the copyright statute is referred to as the “compulsory [mechanical] license” provision. (There are three other, less important and more obscure, uses specified in the U.S. copyright statute for which compulsory licensing is prescribed.)

Other exceptions to the rule of absolute control by the copyright owner are those uses that are “fair” uses of the copyrighted work. We already know the name for any use that is made without specific permission and that is neither governed by the compulsory license provisions of the copyright statute nor a legitimate fair use of the copyrighted work—any such use is called copyright infringement. In fact, it’s safe to say that many infringements result from a would-be user’s inability to understand the word “No”—or the reluctance, for whatever reason, to ask for permission to use the copyrighted work in the first place. The ability to ask correctly for permission to use a copyrighted work is an art—in some situations it may approach diplomacy. That’s because the more you need to obtain permission to use a work, the more you may need to call on everything you know about copyright and everything you know about diplomacy in order to make your request properly and enhance your chances of getting the permission you need.

It’s important to understand that, other than in a very few instances involving musical compositions, there are no fixed fees prescribed by the copyright statute or the Copyright Office or otherwise for the right to use copyrighted works. This lack of universal standards for what is charged for permissions means that each request for a permission leads 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.

It is important to also understand before seeking permission to use a copyrighted work that a copyright owner’s agenda may not include accommodating yours. If you request the right to use a copyrighted work in the same format as that the copyright owner markets, you are likely to be denied permission to use the work. And even if the work is not presently being used in the form in which you want to use it, the copyright owner may have plans for a similar use or a more profitable license may have been offered by someone else. These are reasons not to assume that you will be given the right to use the work in the way you request—but the only way to find out what you will be permitted to do is to ask.

The Copyright Clock
The first determination you must make in seeking permission to use a copyrighted work is whether the work is still protected by copyright. This seems too obvious to mention, but skipping an examination of the copyright status of the work you want to use can end up costing you whatever time you spend seeking a permission you don’t need. Always devote your first efforts to figuring out whether the work is protected by copyright or has fallen into the public domain. This exercise can do more than keep you from spending time requesting permission to use a public domain work. It may be that you will be able to trump a copyright owner who is reluctant to grant permission to use a work by simply biding your time—if you find that copyright protection for the work is running out and will expire soon, perhaps you can simply wait until copyright protection expires and save yourself the effort of asking for permission to use the work. For definitive information on how to figure out whether the copyright in a work has expired, consult the Copyright Office Circular 22, “How to Investigate the Copyright Status of a Work.” You can read this circular online on the Copyright Office Web site at www.copyright.gov; can order it through the Copyright Office Fax-on-Demand service at (202) 707-2600; or can request that it be mailed to you by calling the Copyright Office Forms and Publications Hotline at (202) 707-9100.

What Do You Need?
The second determination you must make in seeking permission to use a copyrighted work is exactly what rights you need. Do you want to reprint the entire scientific paper or would being able to reproduce the chart on page eleven suffice? Do you want to be able to use the photograph as the cover of your book, or is it better as an illustration in one of the chapters? Do you plan to mount a full production of the play and charge admission to those who see it, or are you planning only to recite one of the monologues in a one-night free-admission talent contest? Attention to this question can even 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. For example, maybe you need to quote only two sentences from the New York Times review that praises your first documentary in the prospectus that you’re writing to raise money for the second one—using the entire review would be superfluous and would require that you obtain the right to reprint it, but you don’t need permission to quote only a very brief section of the review.

Narrowing your request to obtain only the rights you actually need can also save you money; using an entire musical composition as the soundtrack for your short animated film will cost you more than using only a few bars as incidental music in one scene. It may even 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? If the copyright owner agrees to grant permission for the minimal use of his or her work, ask what it would cost to make the maximum use of it. Or, conversely, if permission to make maximum use of the work is too expensive or is denied, find out whether it’s possible to get permission to use the work minimally.