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Fair Use
Who
Owns What?
Creating MM
In the Digital Library
Copyright Management
Licensing Resources
Online Presentations
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Offsite
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Collective
Rights Organizations | Contacting Owner
Changed Owner | Authority
| In Writing
Difficulty Identifying Owner | Unidentifiable/Unresponsive
Owner
Assuming the work you wish
to use is protected, your use is not a fair use or otherwise exempt from
liability for infringement, and the work has not been licensed for your
use online, you need permission. Now what?
CCC
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There are no foolproof
methods to obtain permission, but there are steps likely to yield
results. The steps will vary depending on the nature of the work
you need to use. If the work is part of a book or a journal article,
contact the Copyright Clearance
Center ("CCC") first. The CCC now offers an experimental
electronic permission service and a well-established photocopy based
academic permission service. Definitely worth a try. Your library or copy center is probably already working with the CCC and should be able to help you. If the work you want to use is registered
with the CCC, you can get permission within 24 to 36 hours. Permission
during peak times like the beginning of fall semester will take
longer.
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Foreign
Collectives
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Lesley Ellen Harris publishes
information about
international collective rights agencies at her website. For
example, she notes: "VERDI
(Very Extensive Rights Data Information) which is financed by
the EU is linking together the services of existing multimedia rights
clearance systems in Finland, France, Germany, Ireland, the Netherlands
and Spain. CLARA, a Web site
organized by 5 Norwegian copyright collectives, since November 12,
1998 informs users of their rights and rights clearances of all
types of copyright materials including use in multimedia productions.
"On February 26,
1999, the UK-based Copyright Licensing
Agency ("CLA") launched its first digital licensing
scheme for print test. It offers a license for the creation, storage
and exploitation of digital versions of existing print works in
its repertoire. The first electronic licenses were offered to the
higher education and pharmaceuticals sector."
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Image
Archives
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At
this time, the professional organizations representing image creators
cater to commercial interests and may be unfamiliar with educational
needs. There are only a few collections specifically devoted to educators.
Until more organizations catering to our needs emerge, these are a
sampling of your options.
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Freelance
Writers
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If
the author has retained copyright in a contribution to a periodical
such as a magazine or newspaper, permission may be obtained through
Ingenta, which handles rights
for the Publication Rights Clearinghouse,
a collective-licensing agency representing such writers' groups as
The National Writers Union (NWU), the Canadian Science Writers' Association
(CSWA), the Periodical Writers Association of Canada, the Society
of Children's Book Writers and Illustrators, and the United States
Section of the International Association of Art Critics, among others. |
Music
Performance
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If
you wish to perform a musical work, the University's license with
ASCAP, BMI
or SESAC may cover your use. Check
with the University's Business Office.
Want to record and distribute
a musical composition that has already been recorded by someone
else, or synchronize music with visual images? Check with The
Harry Fox Agency, Inc.
Online performances are
quite complicated. They involve 3 rights rather than just one: (i)
the performance right in the musical composition (see ASCAP, BMI
and SESAC above), (ii) the performance right in the sound recording
and (iii) the right to duplicate the musical composition (see Harry
Fox Agency, above). Each of these rights must be licensed from a
separate entity.
The owner of the sound
recording is usually the record label. The Recording
Industry Association of America (RIAA) represents most major
labels and has a good explanation of the statutory license available to certain Webcasters.
There is also a nonprofit educational radio station exemption that
covers Webcasts of licensed radio broadcasts. If the statutory license
or the nonprofit educational radio station exemption do not apply,
you will have to get permission from each record label whose recordings
you wish to Webcast.
Music
Research Consultants' web page contains links to publishers,
record labels, music rights agencies, and more. This is a good place
to gather contact information. If you know the name of an artist,
album, song or label, the All-Music
Guide allows you to search for more information and often links
directly to the source.
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Play
Rights
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Rachel
Durkin Drga, Production Manager of the Performing Arts Center at the University of
Texas at Austin has written two very informative articles about Obtaining
Rights to Produce a Play or Musical or to Use Music in Live Performance.
Samuel French, Inc.
45 West 25th Street
NY, NY 10010-2751
Phone: 212-206-8990
Fax: 212-206-1429
Anchorage
Press (Plays for young people)
PO Box 2901
Louisville, KY 40102-2901
Phone: (502) 583-2288
Fax: (502) 583-2281
Baker's Plays
100 Chauncy Street
Boston, MA 02111-1783
Phone: 617-482-1280
Fax: 617-482-7613
Dramatists Play Services,
Inc.
440 Park Avenue South
NY, NY 10016
Phone: 212-683-8960
Fax: 212-213-1539
Music Theatre International
(Major musicals)
545 Eighth Avenue
NY, NY 10018-4307
Phone: 212-868-6668
Fax: 212-643-8465
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News
Archives
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If
the work you need to use is from a newspaper or other news organization,
check the World Wide Web. Many of the largest news organizations have
placed archives of their back issues online. |
Movies
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The Motion
Picture Licensing Corporation , Movie
Licensing USA , and Swank Motion
Pictures, Inc. , grant public performance rights.
The Motion Picture Licensing
Corporation is an independent copyright licensing service exclusively
authorized by major Hollywood motion picture studios and independent
producers to grant Umbrella Licenses to nonprofit groups, businesses,
and government organizations to ensure that the public performances
of home videodiscs and videocassettes comply with the Federal Copyright
Act.
Movie Licensing USA,
a corporate division of Swank Motion Pictures, Inc., addresses the
specific Movie Public Performance Site Licensing needs of schools
and public libraries. Movie Licensing USA provides an exclusive
license that satisfies the copyright protection needs of the movie
producers, while offering a worry-free, liability-free movie license.
Swank Motion Pictures,
Inc., is a major movie distributor and a public performance licensing
agent in non-theatrical markets where feature entertainment movies
are shown. Swank Motion Pictures, Inc., has exclusive distribution
arrangements in many markets with most American movie producers
for the motion pictures seen in theaters. Creating an account requires
basic information (shipping and billing addresses, contact person,
telephone number, fax number, and an e-mail address), and pricing
varies by format, title, and venue. For more information, contact:
Tiffany Ellis
Senior Account Executive
Swank Motion Pictures
Phone: 1-800-876-5577
Fax: 314-289-2192
E-mail: tellis@swank.com
FYI: A recently obtained
license dated September 18, 2003, for a one-time showing of the
films Ordinary People and A Beautiful Mind cost $331.00
per film for a total cost of $662.00.
Internet Archive has educational public domain films available for download. The films are stored in MPEG format and need to be downloaded to view rather than viewing as streaming video.
You may also need to investigate whether any rights need to be cleared that could be held by the actors, producers, writers, performers, guilds, or composers. Agent representation for living people can be found at the WhoRepresents website.
One may research film and video copyrights using the database at the Library of Congress. This database lists claimants and copyright ownership to works registered after 1978. To search for works registered before 1978, one must search in the Library of Congress online catalog, LOCIS, or in printed Copyright volumes. |
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If
you know who the author and the publisher are, you can contact them
directly. Wake Forest
University maintains a site with links to many publishers. If
you do not know who the publisher is, The Literary Marketplace (for
books) or Ulrich's International Periodicals (for journals), both
published by the R. R. Bowker Company, may help you. Project
Acorn provides extremely helpful information about how to find
copyright owners as does U.T. Austin's Harry
Ransom Humanities Research Center. If you visit these sites, spend
some time there exploring all the information they have provided about
the whole process of getting permission.
Once you know whom to
ask, writing a letter, calling or emailing
are all appropriate ways to initiate contact.
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Sometimes
the apparent copyright owner is no longer the real copyright owner.
The Copyright Office
now provides online searching of some of its registration records
and performs professional searches for a fee. |
Confirming
Authority
to Grant Permission
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Whenever
it is unclear who the owner is, or if the owner is a legal entity
of some kind (a business or organization), you should be sure that
the person giving you permission is authorized to do so. For example,
if you are negotiating with an author, question her about whether
she retained copyright or whether she assigned it to her publisher.
Sometimes people are unsure. If you are preparing a commercial product,
you will need absolute assurances of authority
to grant permission because your publisher will expect those assurances
from you. |
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Ideally,
your permission should be in writing and
should clearly describe the scope of permission. Vaguely worded permissions
may not cover your intended use. Be careful here: describe what you
want to do precisely and include alternatives if you are unsure of
format. For example, if you are preparing a Web-based multimedia product,
you may wish to distribute it on a CD-ROM under some circumstances.
Permission does not have
to be in writing. If you receive oral permission, precisely describe
what you want to do, and then document the conversation carefully.
It wouldn't hurt to send a confirming letter to the owner, asking
him or her to initial it and return it to you if it accurately reflects
your agreement.
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If
the author, creator or publisher is not obvious, such as may be the
case for historical photographs, architectural drawings, personal
papers or other archival materials, your
task may be more difficult. Try the following:
- Check with the source
of your copy of the work for any information about who owns the
copyright and how to contact the owner. For example, the library
where you found the materials may own the copyright or know whom
to contact for permission to use the work or excerpts from it.
- Manuscripts: Check
the WATCH
File, a database that contains primarily the names and addresses
of copyright holders or contact persons for English-language authors
whose papers are housed in whole or in part in libraries in North
America and the United Kingdom.
- Architectural works:
Getting Permission to Use Archival Materials
Related to Architectural Works
- Photographic images.
- Plays: Obtaining
Rights to Produce a Play or Musical; Obtaining
Rights for Music Used in Live Performance
- Check with your source
for an alternative work that is either in the public domain or
for which copyright ownership can be more easily determined.
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Sometimes,
even if you go through all the right steps, you may not figure out
whom to ask or the owner may not respond. There truly may be no one
who cares about what you do with a particular work, but the bottom
line is that no amount of unsuccessful effort eliminates liability
for copyright infringement. Copyright protects materials whether the
owner cares about protection or not.
While it is possible
that a thoroughly documented unsuccessful search for an owner would
positively affect the balance of the fair use test under the fourth
factor or lessen a damage award even if the court determines that
there was an infringement, there are no cases addressing this issue,
so it's only a theory. Because the University is likely to be liable,
along with an accused individual, for the infringements of faculty,
students and staff, U.T. System must advise such individuals not
to use works for which required permission cannot be obtained. The
University itself, however, may determine that at times there are
important considerations favoring limited nonprofit educational
use of materials that would counterbalance the risk of harm to someone's
legal rights, knowing and accepting that it may suffer the consequences
if a fair use or mitigation of damages argument might fail.
If the University does
everything possible to lower the risk (that is, making and documenting
a thorough search for anyone who would be harmed) and is unable
to find anyone, it may be willing to assume that risk if the counterbalancing
benefit is significant. Still, if it turns out that there is an
owner who objects to the use and a fair use or mitigation of damages
argument fails, the University will have to accept the consequences
of infringement.
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