Permission Tools: Licenses and Releases
Obtaining permission to use a protected work requires entering into an agreement with the owner of that work. Your agreement may give you the right to use the work (a “license”) or it may be a promise that the owner will not sue you for an unauthorized use (a “release”).
Licenses and Clearances
A license is the legal right to do something that you would not otherwise be permitted to do. For example, you need a driver’s license to give you the right to drive a car. The owner of a copyrighted work can authorize someone else to use the work by granting a license to the user. For example, the owner of a photograph copyright can grant a license to someone else who wants to reproduce the photograph on greeting cards. If no license has been given, the copyright owner can sue for the unauthorized use of the work, referred to as “infringement.”
The terms “license” and “permission agreement” are often used interchangeably. You may also find that, in some situations, a license or permission agreement is referred to as a “clearance agreement.” “Clearance” is a general term used to describe the process by which permission is granted.
EXAMPLE: Don is writing a book on British horror films and wants to reproduce an image from a 1950s film. Don must obtain a license to reproduce the image from the owner of rights in the film.
Releases
A release is an agreement by which someone releases you from legal liability for a particular activity. In essence, the person is agreeing ahead of time to give up (or release) any right to sue you that may arise from a specific situation. Releases are often used to avoid lawsuits involving someone’s right of privacy (the right to be left alone) or right of publicity (the right to control how one’s image, voice, or persona will be used to sell things). A release may also protect against claims of defamation (a false statement that injures someone’s reputation). Releases are discussed in more detail in Chapter 12.
EXAMPLE: Makeover is a TV show in which audience members are selected for beauty and fashion makeovers. Any audience member selected must sign a release before appearing on the show. The release protects the TV show from any potential lawsuits by disgruntled participants who are unhappy with the results of their makeovers and seek damages for legal claims such as infliction of emotional distress or defamation.
CAUTION
Don’t rely on the title of an agreement. In many cases, licenses and releases overlap. For example, a release agreement may contain license language and vice versa. Despite what it says at the top of the agreement, either type of agreement can be used to grant rights or to prevent lawsuits. Because of this overlap, the title of an agreement is less important than the content. Always review any agreement carefully (and compare it to the model agreements in this book) before assuming what rights it covers.
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