These FAQs will in securing copyright permission to use a protected work.
What is copyright permission?
It is the process of getting consent from the copyright owner of the work to use that owner’s material in whatever form you are going to use it (e.g., a book). You will sometimes hear permission referred to as “licensing” — essentially the copyright owner is granting you a license to use the material in the way that has been agreed upon by both parties. Unless the material is in the “public domain” or your use is considered a “fair use”, you must seek permission from the owner to use it. If you do not seek permission, you may be infringing and may be subject to legal action.
Do I need copyright permission?
If you want to use material that is not in the public domain and the use you are making of the material does not fall under the fair use requirements, then you should seek permission from the copyright owner.
The following works are in the public domain (i) material published prior to 1923; (ii) material published between 1923 through 1963 without a copyright renewal; (iii) material published between 1923 through 1977 without a copyright notice; and (iv) material published from 1978 through March 1, 1989 without a copyright notice and without subsequent registration within 5 years. If the material is in the public domain permission is not required.
To review fair use guidelines and the checklist, please see the Copyright section located on the Sturm College of Law’s website at: http://www.law.du.edu/index.php/copyright.
Steps in the permission process.
. In order to begin the permission process you must identify the owner of the work. Keep in mind that the author is not always the copyright owner of the work. Many times the publisher of the work is the copyright owner. Additionally, there may be multiple copyright owners if you have a book or article written by multiple authors.
First, check to see if the work has a copyright notice. If there is a notice that indicates who owns the copyright that is the person or entity you should start with.
For instance, if you are seeking permission to use information printed in a book, check the inside front pages for the notice (e.g. “Copyright © 2003 Aspen Publishers, Inc.”). In this example, you would contact Aspen Publishers to secure permission. Generally you want to visit the publishers’ website to see if it has information on how to secure copyright permission. Many publishers have an online request form or a specific email or phone contact available to assist with copyright permission.
If you are seeking permission to use an article published in a law review/journal or other type of journal publication, check the inside cover of the journal to see if there is a copyright notice or information about who holds the copyright, the journal publisher or the author. The following are examples of what you might find and how you should proceed:
(a) “Copyright © 2010 Taylor & Francis Group, LLC. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Taylor & Francis Group, LLC.”
- (i) In this example you would contact Taylor & Francis for permission.
(b) “Except as otherwise expressly indicated, the author of each article in this issue of the Journal has granted permission for copies to be made for classroom or other educational use as long as (1) copies are distributed at or below cost, (2) the author and the Journal are identified, and (3) proper notice of the copyright is affixed.”
- (i) In this example, unless you were using the materials as indicated in this paragraph, you would need to contact the journal for permission. It is not clear from this language whether the journal or the author holds the copyright so it is best to start with the journal and know that they may refer you to the author.
(c) “Copyright © 2009 by Michigan State University College of Law except as otherwise indicated. The copyright in each article is owned by the respective author. All rights reserved.”
- (i) In this example you would need to contact the author of the article for permission. This language indicates that the author retains copyright ownership.
(d) There is not language in the journal that indicates copyright ownership.
- (i) In this example you would need to contact the journal for permission. The journal might refer you to the author, but it is best to start with the journal.
If you have made a determination that you need to contact the journal for permission, check the information in the front of the journal to see if it provides the name and contact for seeking copyright permission. If there is no information at the front of the journal issue, check the website for that particular journal. Once you have the contact information you can begin the process.
If you have made a determination that you need to contact the author for permission, check the law review article to see if it provides the name and contact for the author. In many cases the author’s university affiliation will be listed. Once you have that information you can visit the university’s website and look for the author’s email and phone number.
Keep in mind that whether you are dealing with a publisher, journal, or the author directly that it may take time to secure copyright permission. You may also have to follow-up or call to move the process along more quickly. In some instances the process may take a few weeks to a few months. It is best to seek permission prior to completing the work in case you need to remove something due to the inability to secure permission. The best plan is to start the permission process as early as possible.
. In those limited situations when you cannot identify the copyright owner from the material itself you should attempt a search in the online copyright catalog hosted at http://www.copyright.gov. Only copyrights recorded from 1978 to date are available in the online catalog. However, keep in mind that a copyright owner is not required to register their work with the copyright office in order to have copyright rights. If you still have not located the owner, you might conduct a Google search by searching the title of the work in quotes to see if you receive any results that can provide clues as to the owner.
. Once you have determined the owner of the copyright, you must determine the types of rights you wish to secure from the owner.
You want to determine whether you are seeking exclusive or nonexclusive permission rights. It is most likely that you are seeking nonexclusive rights to use the work meaning that the author and anyone else the author grants permission to can also use the work.
You want to determine the terms of the use. In other words, how long do you want to be able to use the work?
- (i) Is it a one-time use meaning that you only want to use it once in that particular work or edition of work
- (ii) Is it an on-going use meaning that you want to use it in this work or edition and any future works or editions that might be published
- (iii) Is it a multiple type use meaning that you want to use it in both a print and online resource or possibly two print resources or two online resources
- (iv) Is it a use in perpetuity meaning that you want to be able to use it any time in the future in any capacity without contacting the owner for additional permission
You want to make sure that you request the type of permission you need and cover all your bases so that you do not have to seek multiple permissions.
Also, keep in mind that the owner of the copyright may want compensation in order to grant permission. You will need to determine ahead of time whether you are willing to pay for permission and if you are willing to pay, the dollar amount you are willing to pay.
. Once you have determined the copyright owner and the type of rights you need from that owner, it is time to contact the copyright owner. If you know the copyright owner of the work, then that is the place to start.
In some cases the owner, in particular if it is a journal or publisher, will provide a website. Check the website to see if there is an option to seek copyright permission online. If the website does not have that option, then email or contact the journal or publisher by phone. If the copyright owner is the author of the work, then contact the author via email or phone to seek written permission.
In those situations where it is not clear who is the copyright owner, start with the journal or publisher. If they do not own the work, then you can take the next step of contacting the author directly.
. You should secure the permission in writing. Never rely on copyright permission provided orally.
When dealing with a publisher they will often have their own written form available for completion. Read the form carefully to make sure no edits are necessary to meet the circumstances of your particular situation.
When dealing with an author, the best approach is to have a form that you have drafted for the particular situation that you can complete and forward to the author from whom you are seeking permission. See Exhibit A for a sample form.
. Keep a log of the copyright permission process. This will enable you to stay current with the process and to ensure that you have secured all necessary permissions. You should consider noting the following items in your log:
- (i) Title and author of the work for which you are seeking permission
- (ii) Name of entity or person that the copyright permission was sought from
- (iii) Date copyright permission was sought or requested
- (iv) Any follow-up actions or correspondence
- (i) Date that permission was received
- (v) Copy of permission received
What do I do if I cannot get copyright permission?
There are some situations where you may not be able to secure copyright permission and have no other viable argument to rely upon, such as fair use. In those instances you may have to remove the material from the publication. If you use the material without permission from the copyright owner you have most likely violated the law and could be subject to a copyright infringement claim.
How do I get copyright permission to use a photograph or a figure?
Seeking permission to use a photograph or figure is similar to seeking permission to use written work. You must first identify the owner of the photograph or figure, which can sometimes be difficult. You should then contact the copyright owner and seek written permission to use the photograph or figure. If you are unable to locate the owner of a photograph, you may want to consider looking for a photo from one of the free or low-cost websites (e.g. istockphoto.com; freedigitalphotos.net; freephotos.com). If you are unable to locate the owner of a figure, you may want to consider searching for a similar figure from an alternative source or one published by the federal government as its work is generally not copyrighted and can be used.