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.
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.
Whom Do You Ask?
Your skill as a researcher can be an important factor in whether getting permission to use a copyrighted work is a relatively straightforward task or a months-long wild goose chase because before you can ask for permission you must find where and to whom to send your 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. Somewhere on the physical object that embodies a published work, there will be publication information that can lead you to the owner of copyright or the owner of the exclusive right to publish the copyrighted work, which are different statuses from the viewpoint of the copyright owner, but are functionally the same from the viewpoint of a would-be user of the work, like you.
With a poem or play or book or any other published literary work, write the “Permissions Department” of the publisher of the work to request permission to use it. If the publisher isn’t the owner of copyright in the work, it will certainly have been licensed to publish it and, depending upon the nature of the use for which you request permission, will grant or deny your request or forward your letter to the author of the work for his or her consideration.
Copyrights in popular songs and other contemporary musical compositions are usually owned by music publishers. If you call one of the performing rights societies that collect royalties for broadcast uses of musical compositions (BMI, ASCAP, and SESAC) with the title of the composition and the name of the songwriter or composer, you can determine the name of the publisher of the composition, from whom you should request permission to use it. Record companies own the recordings of songs that are released on CDs and cassettes; write the record company if you want permission to use the recording of the song, as opposed to the song itself, in addition to the publisher, who can grant permission to use the song.
For works of the visual arts such as paintings or sculptures you should contact the artist directly or, in the case of a deceased artist, the artist’s estate. Galleries and museums may be good sources for such address information. However, don’t assume that because a painting is owned by a museum or an individual collector the copyright in the painting or sculpture is also owned by the museum or collector. Although the owner of a painting or sculpture is, of course, allowed to display it, ownership of a work of art does not automatically bestow on the owner of the work the right to exercise any of the other exclusive rights of copyright. Requests to use photos should be addressed to the photographer or his or her licensing agency.
Finding the owners of copyrights in other sorts of works may be more difficult. If you can’t find the information you need about the owner of a copyright, you may be able to get it online. If you know the title of the work or the name of the author, start with the Copyright Office. Go to http://www.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. The Copyright Office allows members of the public to search its records, but this requires that you go to Washington or hire someone to search for you. A better method of determining the ownership of a copyright may be to hire the Copyright Office to search its records for you; at seventy-five dollars an hour, having the Copyright Office search for you is not cheap, but the results of such a search may be more reliable than a do-it-yourself effort. The Copyright Office publication “How to Investigate the Copyright Status of a Work” and Circular 23, “The Copyright Card Catalog and the Online Files of the Copyright Office,” available online or mailed to you without charge from the Copyright Office, will give you more information about searching the records of the Copyright Office.
Another excellent source of information is the “Getting Permission” source list maintained by the University of Texas at Austin at www.utsystem.edu/ogc/intellectualproperty/permissn.htm. This site offers links to an assortment of organizations that can grant permission to use all sorts of copyrighted works or, if they can’t grant permission, can give you the information you need to find the right person or company to ask for permission. There are many online sites that give information about copyright clearance; like the UT-Austin site, many of them are operated by universities, perhaps because universities are concerned, justly, about the liability inherent in the unauthorized use of copyrights by their faculty, staff, and students.
The age of the work can be important in determining whom to ask for permission to use it because the owner of an older work may be hard to find, even if you have a name and address for the owner. Lots of things can happen during the term of copyright in a work—publishers may be bought by other publishers, authors may sell copyrights or die and leave them to their heirs, contracts that give someone the right to use a work may expire, etc. If you have a copy of the work you want to use that indicates a publisher or copyright owner, you may be in a better position than someone who has no leads as to where to start in a search for the owner of a copyright, but neither can you assume that the copyright owner or publisher named on the copy of an older work still controls the copyright in it. View such information as a starting place and in any situation where there may be a later edition or version of a published work, try to find the later edition so your information about the copyright owner will be as recent as possible.
The prominence or obscurity of the owner of copyright in a work can determine how difficult it will be for you to get permission to use the work. You won’t have the same trouble locating a copyright owner who is a big company or prominent person. But that same prominence may make it harder to get permission to use the copyrighted work—a work that has been exploited by and is owned by a successful publisher or a well-known author may be more valuable than a more obscure work and less likely to be licensed for use by someone else.
Permissions, also called licenses, do not have to take any particular form. In fact, non-exclusive licenses, which is what most permissions are, don’t even have to be in writing to be effective. However, it is a bad idea to depend on anyone’s ability to recall the terms of a verbal license.
This means that you should request any permission in writing. Fortunately, permissions are simple enough documents that you may be able to secure any permission you need yourself. The simplest form for requesting a permission is a letter that includes a space for the counter-signature of the person who is in a position to grant your request to use the copyrighted work. (A signature at the bottom of a letter to indicate someone’s assent to the contents of the letter is called a “counter-signature.”) 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.
Nothing compels anyone to grant your request for permission to use a work. Some materials such as unpublished letters and manuscripts may contain confidential or embarrassing information or comments, at least in the view of the person who wrote them or whose relative wrote them. This means that permission request letters should be polite and deferential. Further, although many such requests are granted without payment, it may be that offering even a small amount in return for the requested permission will decrease your chances of being turned down. After all, if the material you want to use is important to your project, it is probably valuable enough to pay for.
Even if you are able to reach the owner of the copyright you want to use by phone or e-mail, it is necessary to follow up this initial contact with a letter. You may be able to write this letter yourself, without the help of a lawyer; you can certainly gather all the information you need and negotiate the terms of your license. Whether you write the letter or hire a lawyer to do it, your request letter should include a clear statement of the details of the license you wish to acquire. The important points to cover in any request of this sort are listed below.
1. Describe the work you want to use.
Include the following:
- the full, correct title of the work
- the edition of the work
- the publisher of the work
- the date of copyright
- the owner of copyright
2. Describe how you want to use the work.
Include the following:
- the exact portion of the work that you want to use
- the method by which you want to reproduce the work you want to use
- the number of copies you expect to make using the licensed work
- whether and how the copies of the licensed work will be distributed and/or sold
3. Request the type of license you want to acquire.
4. Specify the scope of the license.
5. Specify the territory of the license.
6. Specify the term of the license.
7. Specify the payment you propose or have agreed to make in return for the license.
8. Specify the credits language that the copyright owner requires.
9. Specify that the person who will counter-sign your letter has the authority to grant the license you need.
10. Specify the reasons why the license agreement may be terminated.
As with any agreement, unless you are absolutely confident that you understand what is going on with your permission letter, consult a lawyer. This doesn’t have to cost a fortune. You can save yourself hundreds of dollars in legal fees if you research the identity of the copyright owner yourself and negotiate with the owner regarding the terms of your license agreement. If you take your (detailed) notes to a lawyer skilled in copyright law and describe to him or her, maybe in a memo, exactly what has happened so far in your quest for the permission you need, you should be able to emerge from your lawyer’s office with a short agreement that you can then send to the copyright owner for execution.
Never decide to use a copyrighted work after you have been denied permission to do so. Your transgression will be no greater than it would have been if you had never requested such permission, but your action in defiance of the denial of permission to use the work is likely to anger the owner of the copyright in it. Anger is an important ingredient in lawsuits. Further, your earlier request for permission to use the work may be used against you in court as evidence that the claimed infringement was not an innocent blunder. An unfinished project, no matter how brilliantly conceived, is preferable to a lawsuit for copyright infringement any day. ca
The Copyright Guide may be purchased for $19.95 plus $5 shipping and handling from Allworth Press, 10 E. 23rd Street, New York, NY 10010, calling toll-free (800) 491-2808, or visiting www.allworth.com. New York State residents should add sales tax.