This section outlines the basic steps for obtaining permission. Subsequent chapters provide more detailed information about this process for each type of permission you may be seeking, whether for text, photographs, music, or artwork. In general, the permissions process involves a simple five-step procedure:
- Determine if permission is needed.
- Identify the owner.
- Identify the rights needed.
- Contact the owner and negotiate whether payment is required.
- Get your permission agreement in writing.
Each step is described in more detail below.
- 1 Determine if permission is needed
- 2 Identify the Owner
- 3 Identify the Rights You Need
- 4 Plan Ahead for Permission
- 5 Negotiate Whether Payment Is Required
- 6 Get It in Writing
Determine if permission is needed
The first step in every permission situation is to determine whether you need to ask for permission. In other words, do you need an agreement or can you use the work without permission? Determining whether to ask for permission depends on two questions:
- Is the material protected under law?
- Would your use of the material violate the law?
Unfortunately, it is not always possible to answer these questions with a definitive “yes” or “no.” Sometimes, you may have to analyze the risk involved in operating without permission. Below are some basic legal principles you’ll need to know. Subsequent chapters explore these principles in more depth.
Is the Material Protected Under Intellectual Property Law?
You should always start with the presumption that, if the creative work you want to use was first published after 1922, U.S. copyright law protects it. There are only two ways that a work published after 1922 is not protected: Either the owner of the work made a mistake (such as failing to renew the copyright) or the work does not meet the minimum standards for copyright protection. Later chapters on the permission rules for particular types of creative works provide guidelines to determine if the work you intend to use is protected.
A work that isn’t protected by intellectual property laws is in the public domain and can be used without asking for permission. Most works that fall into the public domain do so because of old age. Public domain status may also be due to other reasons discussed in Chapter 8.
Example: Bill wants to include his recording of the song “Give My Regards to Broadway” on his website. Because the song was first published in 1904, it is in the public domain and Bill can use it without obtaining permission.
Would Your Use of the Material Constitute a Violation of Law?
If a creative work is protected under intellectual property laws, your unauthorized use may still be legal. This is because there are exceptions to each of the laws protecting creative work — situations in which authorization is not required. For example, under copyright law, a principle known as “fair use” permits you to copy small portions of a work for certain purposes such as scholarship or commentary. Under the fair use doctrine, you could reproduce a few lines of a song lyric in a music review without getting permission from the songwriter (or whoever owns the copyright in the song). Chapter 9 discusses fair use in greater depth.
What is the Risk of Not Asking for Permission?
The goal of this book is to minimize your risk of being sued. As explained in each chapter, the risk of being sued depends on not only your particular use, but on factors such as the likelihood that the use will be spotted, whether you are a “worthy” target for litigation, or whether the other side is inclined to sue.
This book recommends a conservative approach. Unless you are certain that the material is in the public domain or that your use is legally excusable, seeking permission is worth your time. If you are not sure, you’ll have to either make your own risk assessment or obtain the advice of an attorney knowledgeable in copyright or media law.
EXAMPLE: I wanted to use the lyrics from the song “From the Indies to the Andies in His Undies,” featured in the “Your Legal Companion” section at the front of this book. I located information about the writers of the song from a compilation recording of country music. Then, I located the name of the publisher (Rialto Music, Inc.) from the American Society of Composers, Authors, and Publishers (ASCAP), which informed me that the owner had ended its affiliation with the organization in 1975. I searched to no avail for the songwriters and Rialto Music on the Web using a search engine. I also checked the online Library of Congress records but found no reference, either because the song was never registered or the song was written before the date their online computer records began. I contacted the Harry Fox Agency, another agency that controls rights, which gave me a reference for Rialto in Providence, Rhode Island. I tried using operator assistance but could find no listing. I decided to proceed without permission because my limited use of the lyrics (four lines) for purposes of commentary, combined with my good-faith attempt to find the owner, probably qualifies as a fair use.
Identify the Owner
Identifying the owner of the work you want to use is crucial to obtaining permission. Sometimes, this task is simple. Often, you may be able to locate the rights owner just by looking at the copyright notice on the work. For example, if the notice reads “Copyright 1998, Jones Publishing,” you would start by finding the Jones Publishing company. Sometimes, more detailed research is required. Copyright ownership may have passed through several hands since your copy of the work was published.
In addition, some kinds of art, such as film and recorded music, can involve multiple owners, each with a separate right to different underlying works. For example, in order to use a Johnny Cash recording, you would have to obtain permission from the record company, the music publisher (the owner of the song), and, in some cases, from Mr. Cash’s estate.
You’ll find that the method of identifying owners differs from industry to industry. For example, photographic reproduction rights are often owned by stock photo organizations, while many music performance rights are owned by performing rights societies. Subsequent chapters on the permission rules for particular types of creative works will advise you on how to locate owners. In addition, Chapter 13 discusses the process of searching for owners in Copyright Office records.
Identify the Rights You Need
The next step in getting permission is to identify the rights you need. Each copyright owner controls a bundle of rights related to the work, including the right to reproduce, distribute, and modify the work. Because so many rights are associated with copyrighted works, you must specify the rights you need. This can be as simple as stating your intended use — for example, you want to reproduce a photograph in your magazine or display a cartoon in your PowerPoint presentation.
Asking for the proper rights can be a balancing act. You don’t want to pay for more than you need, but you don’t want to have to return for a second round of permissions. Sometimes this requires negotiating with the rights owner to find a middle ground for fees.
Besides identifying the type of intended use, you’ll need to figure out some other details of your use of the material. Specifically, your permissions agreement will need to deal with three common variables: exclusivity, term, and territory.
Exclusive or Nonexclusive
All permission agreements are either exclusive or nonexclusive. A permission agreement is exclusive if you are the only person who has the right to use the work as described in the agreement. For example, if you enter into an agreement with the owner of a photograph for the exclusive use of the photograph in a cookbook, no one else could use the photograph in another cookbook. Exclusivity can be as narrow or as broad as you choose. For example, you could expand the exclusivity of your permission agreement by obtaining the exclusive right to print the photo in any book, not just any cookbook.
Most permission requests are nonexclusive, meaning others can use the material in the same way as you. For example, if you have a nonexclusive agreement to use a photo in your cookbook, the same photo could be used in someone else’s cookbook (provided permission was granted). The permission agreements included throughout this book offer you the option to choose exclusive or nonexclusive rights.
Term of Use
The length of time for which you are allowed to use a work is often referred to as the “term.” Your rights under a permission agreement will often be limited in duration. For example, if you are licensing the right to display a photograph on a website, the copyright owner may limit the length of your use to one year. Alternatively, you might obtain what’s called a “one-time use,” meaning you can only use the material in one edition of a magazine, not in subsequent editions. If there is no express limitation on the use, you are allowed to use the material for as long as you want or until the copyright owner revokes the permission. Some agreements prohibit the copyright owner from revoking rights by granting permission “irrevocably.” Sometimes an agreement states that it is “in perpetuity,” which means that rights are granted without time limits. In reality, the copyright owner can only grant permission for as long as the owner’s copyright protection lasts. After that, anyone can use the material without permission.
Your rights under a permission agreement may be limited to a geographic region, referred to as the “territory.” For example, the copyright owner of a book may grant you permission to reprint a chapter only in the U.S. and Canada.
As you go through the various chapters, this book will advise you on how to shape your permission agreement so that you obtain the rights you need for your purposes.
Plan Ahead for Permission
Expect getting permission to take anywhere from one to three months. Permission should be obtained before you complete your work. It is sometimes more difficult and more expensive to obtain permission after a book, film, or recording is complete. If the copyright owner becomes aware that you have a vested interest in obtaining permission (for example, your book is already in production), the price may rise. In addition, if you can’t obtain permission, you’ll have to redo the work, which is expensive and time consuming. The best policy is to start seeking all required permissions as soon as possible.
Negotiate Whether Payment Is Required
The primary issue that arises when seeking permission is whether you will have to pay for the permission you seek. Sometimes, the owner of the work will not require payment if the amount you wish to use is small, or if the owner wishes to contribute to an educational or nonprofit effort. In some cases, an artist or musician eager for exposure may agree to suspend payment unless the work becomes profitable, or may condition payment on other factors.
EXAMPLE: Sam is making a low-budget documentary film in which he wants to include photographs of vintage accordions. He contacts the copyright owner of the photographs who, in return for a credit at the end of the film, signs an agreement allowing use of the photographs in the film. However, the agreement also provides that, if Sam uses the photographs in a poster or advertisement for the film, he must make an additional one-time payment of $1,500.
Although many uses of works may be free, you should usually expect to pay something — even a minimal fee — for copyright permission. For example, the evolving world of stock photos has made it possible to get some photo permissions for as low as $2. Or it could be a fairly hefty payment. For example, using a song in a commercial usually requires a payment of several thousand dollars.
Generally, permission fees are linked to the size of the audience your work will reach. A large metropolitan newspaper will have to pay more to use a photograph than a small-town newspaper. Commercial uses, such as advertisements, cost more than nonprofit or educational uses. The fees for website uses may depend upon the number of visitors to the site. In each chapter, we will discuss the likelihood of payment and the current rates for common uses. However, these figures can vary widely, as the copyright owner has discretion when charging a fee.
Get It in Writing
Relying on an oral agreement or understanding is almost always a mistake. You and the rights owner may have misunderstood each other or remembered the terms of your agreement differently. This can lead to disputes. If you have to go to court to enforce your unwritten agreement, you’ll have difficulty proving exactly what the terms are. Get written permission agreements — do not rely on oral agreements.
That said, an oral permission may be legally enforceable if it qualifies as a contract under general contract law principles. Moreover, even if you have no explicit oral agreement, you may still have a right to use a work if permission can be inferred from the conduct of the parties.