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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").
1. Licenses, Permissions and Clearances
A license is the legal right to do something that you otherwise would not be permitted to do --such as a driver's license that gives you the right to drive a car. The owner of a copyrighted work such as a photograph can authorize someone else to use the photograph--for example, to reproduce it in a website or on a greeting card --by granting a license to the user. 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 a photograph from a 1950s film. Don must obtain a license to reproduce the photograph from the owner of rights in the film.
2. Releases
A release is an agreement by which someone releases you from legal liability for a certain activity. In essence, the person is agreeing ahead of time to give up (or release) any rights to sue you that may arise from a particular situation. Releases are often used to avoid lawsuits involving someone's right of privacy (which is the right to be left alone) or their right of publicity (the right to control how their image, voice or persona is used to sell things). A release may also protect against claims of defamation (a false statement that injures the reputation of a person). 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. The audience members must sign a release before appearing on the show. This way the TV show can avert any potential lawsuits from disgruntled participants who are unhappy with the final results and seek damages for legal claims such as infliction of emotional distress or defamation.
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. You may find that either type of agreement is used to grant rights or to prevent lawsuits. Because of this overlap, the title of an agreement is always less important than the content. Always review the agreement and compare it to the model agreements in this book.
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