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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.
Many copyright owners use licensing agencies to handle permissions such as the
Copyright Clearance Center (see the sidebar, Permission Sources). Unfortunately, getting permission from an agency
usually involves paying at least a nominal fee. 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?
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 excerpts 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
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/
©
Daniel Steven 2003 |
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