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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 (for text, music, artwork, etc.)..
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.
Let's look at each step in more detail.
1. 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 is based upon 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. In subsequent chapters, we'll explore these principles in more depth.
a. Is the Material Protected Under Intellectual Property Law?
As a practical rule, you should always start with the presumption that, if the creative work you want to use was first published after 1922, copyright law protects it. There are only two ways that a work published after 1922 is not protected: 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. In later chapters that discuss specific permission rules for particular types of creative works, we'll 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 fall into the public domain because of old age. Public domain status may also be due to other reasons discussed in more detail 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.
b. 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 where 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).
c. What is the Risk of Not Asking for Permission?
Our goal in this book is to minimize the risks of lawsuits. As we'll explain in each chapter, the risk of a lawsuit depends not just upon your particular use, but also upon other 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.
Generally, we recommend a conservative approach. Unless you are certain that the material is in the public domain or that your use is legally excusable, we advise you to seek permission. If you are not sure, you'll have to either make your own risk assessment analysis or obtain the advice of an attorney knowledgeable in copyright or media law. As explained throughout this book, an informed decision will lower your risks of proceeding without permission.
EXAMPLE: We wanted to use the lyrics from the song "From the Indies to the Andies in His Undies," featured at the beginning of this chapter. We located information about the writers of the song from a compilation recording of country music. Then we located the name of the publisher, Rialto Music, Inc., from the American Society of Composers, Authors and Publishers (ASCAP), who informed us that the owner had ended its affiliation with the organization in 1975. We searched for the songwriters and for Rialto Music on the Web using a search engine to no avail. We also checked the online Library of Congress records but there was no reference, either because the song was never registered or the song was written before the date of their online computer records. We contacted the Harry Fox Agency, another agency that controls rights and they had a reference for Rialto in Providence, Rhode Island. We tried using operator assistance, but could find no listing. We decided to proceed without permission because our limited use of the lyrics (four lines) for purposes of commentary, combined with our good faith attempt to find the owner, probably qualifies as a fair use.
2. 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 himself.
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; music performance rights are owned by collectives known as performing rights societies. In subsequent chapters that discuss specific permission rules for particular types of creative works, we will advise you on the particulars for locating owners.
3. 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 need to 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.
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 details of your use of the material. Specifically, your permissions agreement will need to deal with three common variables: exclusivity, term and territory.
a. Exclusive or Nonexclusive
All permissions agreements are either exclusive or nonexclusive. A permissions 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 entered into an agreement with the owner of a photograph for the exclusive use of a photograph in a cookbook, the photograph could not be used in anyone else's cookbook. Exclusivity can be as narrow or as broad as you choose. For example, you could expand the exclusivity by obtaining the exclusive right to print the photo in any book, not just cookbooks.
Most permission requests are nonexclusive and 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 throughout this book offer you the option to choose exclusive or nonexclusive rights.
b. Term of Use
The length of time that the use is allowed 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 at 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 that 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 copyright protection lasts. After that, anyone can use the material without permission.
c. Territory
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 we proceed through the various chapters, we'll advise you how to shape your permission agreement so that you obtain the necessary rights.
4. Plan Ahead for Permissions
Expect permissions 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 completed. 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 re-do the work, which is expensive and time consuming. The best policy is to start seeking all required permissions as soon as possible.
5. Negotiate Whether Payment Is Required
The primary issue that arises when seeking permission is whether payment is necessary. Sometimes, the owner of the work will not require payment if the amount being used is quite small or 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 and wants to include photographs of vintage accordions. He contacts the copyright owner of the photographs, and in return for a credit at the end of the film, the owner signs an agreement allowing use of the photographs in the film. However, the agreement also provides that if the photographs are used in the film's poster or an advertisement for the film, an additional one-time payment of $1,500 must be made.
Although many uses are free, expect to pay at least $50 or more for each copyright permission. Some types of permission almost always require payment. For example, using a photo owned by a stock photo agency usually requires a payment of $100 or more. Using a song in a commercial usually requires a payment of several thousand dollars.
Generally, fees are linked to the popularity of your work. A large metropolitan newspaper will pay more to use a photograph than a small town newspaper. Commercial uses, such advertisements, cost more than nonprofit or educational uses. The fees for website uses may depend upon on the number of visitors to the site.
6. Get It in Writing
Relying on an oral or implied agreement 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. We strongly recommend getting written permission agreements and we advise against relying 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 still may have a right to use a work if permission can be inferred from the conduct of the parties.
EXAMPLE: Sam is writing a book and asks for permission to reproduce Tom's photo. Tom quotes Sam a fee of $50, which Sam sends to Tom. After receiving the payment, Tom sends the photograph to Sam. A permission agreement may be inferred from Tom's conduct.
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What If You Hire Someone to Create a Work? |
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Most of the situations described in this book deal with obtaining permission to use an existing work. However, it's possible that you may hire an artist or other creative person to create the work for you. If the creative person qualifies as your employee, you will automatically own all rights to the work he or she creates on your behalf and no permission is required. The Supreme Court has established standards for determining whether a creative person is an employee. These standards include factors such as whether the person is given weekly or monthly payments (instead of being paid by the job), whether employee taxes are withheld and whether the creator receives employee benefits.
If the person creating the work is not an employee, he or she is an independent contractor. In this event, your ownership of the contractor's work is not automatic. To guarantee your ownership of an independent contractor's work, you should use either a work-for-hire agreement (if your commission meets the requirements) or an assignment. For a thorough analysis of acquiring rights from independent contractors, see The Copyright Handbook , by Stephen Fishman (Nolo). | | | 
©2005-2008 The Board of Trustees
of the Leland Stanford Junior University. With the exception of the Nolo Copyright and Fair Use Overview, this work is
licensed under a Creative Commons
Attribution-Noncommercial 3.0 United States License.