Getting Permission: How to License & Clear Copyrighted Materials Online & Off
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Getting Permission: How to License & Clear Copyrighted Materials Online & Off

by Richard Stim
     
 

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Introduction
This chapter offers an overview of the whole process, explaining the purpose and legal basis for permission, as well as the potential risks of operating without permission. It also serves as a guide to using this book.Permission: What Is It and Why Do I Need It?
Obtaining copyright permission is the process of getting consent from a

Overview

Introduction
This chapter offers an overview of the whole process, explaining the purpose and legal basis for permission, as well as the potential risks of operating without permission. It also serves as a guide to using this book.Permission: What Is It and Why Do I Need It?
Obtaining copyright permission is the process of getting consent from a copyright owner to use the owner's creative material. Obtaining permission is often called "licensing"; when you have permission, you have a license to use the work. Permission is often (but not always) required because of intellectual property laws that protect creative works such as text, artwork, or music. (These laws are explained in more detail in the next section.) If you use a copyrighted work without the appropriate permission, you may be violating -- or
"infringing" -- the owner's rights to that work. Infringing someone else's copyright
may subject you to legal action. As if going to court weren't bad enough, you could be forced to stop using the work or pay money damages to the copyright owner.

As noted above, permission is not always required. In some situations, you can reproduce a photograph, a song or text without a license. Generally, this will be true if the work has fallen into the public domain, or if your use qualifies as what's called a "fair use." Both of these legal concepts involve quite specific rules and are discussed more fully in subsequent chapters. In most cases, however, permission is required, so it's important to never assume that it's okay to use a work without permission.

Many people operate illegally, either intentionally or throughignorance. They use other people's work and never seek consent. The problem with this approach -- besides its questionable ethics -- is that the more successful the project becomes, the more likely that a copyright owner will learn of the use. Therefore, if you want your project to become successful, unauthorized use becomes an obstacle.

Some people avoid getting permission because they don't understand the permissions process or consider it too expensive. However, the process is not difficult and the fee for use of common text, photo, or artwork is commonly under $200 per use. In some cases, it's free. On
the other hand, the legal fees for dealing with an unauthorized use lawsuit can easily
cost ten to 50 times the average permission expense -- or more!The Basics of Getting Permission
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, whether for text, photographs, music, or artwork.

In general, the permissions process involves a simple five-step procedure:


  1. Determine if permission is needed.

  2. Identify the owner.

  3. Identify the rights needed.

  4. Contact the owner and negotiate whether payment is required.

  5. Get your permission agreement in writing.



Each step is described in more detail below.

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 depends on 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. Subsequent chapters explore these principles in more depth.

Is the Material Protected Under Intellectual Property Law?

You should always start with the presumption that, if the creative work you want to use was first published after 1922, U.S. copyright law protects it. There are only two ways that a work published after 1922 is not protected: Either 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. Later chapters on the permission rules for particular types of creative works 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 that fall into the public domain do so because of old age. Public domain status may also be due to other reasons discussed 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.

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 in which 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). Chapter 9 discusses fair use in greater depth.

What Is the Risk of Not Asking for Permission?

The goal of this book is to minimize your risk of being sued. As explained in each chapter, the risk of being sued depends on not only your particular use, but on 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.

This book recommends a conservative approach. Unless you are certain that the material is in the public domain or that your use is legally excusable, seeking permission is worth your time. If you are not sure, you'll have to either make your own risk assessment or obtain the advice of an attorney knowledgeable in copyright or media law.

EXAMPLE: I wanted to use the lyrics from the song "From the Indies to the Andies in His Undies," featured in the "Your Legal Companion" section at the front of this book. I located information about the writers of the song from a compilation recording of country music. Then, I located the name of the publisher (Rialto Music, Inc.) from the American Society of Composers, Authors, and Publishers (ASCAP), who informed me that the owner had ended its affiliation with the organization in 1975. I searched to no avail for the
songwriters and Rialto Music on the Web using a search engine. I also checked the online Library of Congress records but found no reference, either because the song was never registered or the song was written before the date their online computer records began. I contacted the Harry Fox Agency, another agency that controls rights, who gave me a reference for Rialto in Providence, Rhode Island. I tried using operator assistance but could find no
listing. I decided to proceed without permission because my limited use of the lyrics (four lines) for purposes of commentary, combined with my good-faith attempt to find the owner,
probably qualifies as a fair use.

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's estate.

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, while many music performance rights are owned by performing rights societies. Subsequent chapters on the permission rules for particular types of creative works will advise you on how to locate owners. In addition, Chapter 13 discusses the process of searching for owners in Copyright Office records.

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 must 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 or display a cartoon in your PowerPoint presentation.

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 other details of your use of the material. Specifically, your permissions agreement will need to deal with three common variables: exclusivity, term, and territory.

Exclusive or Nonexclusive

All permission agreements are either exclusive or nonexclusive. A permission 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 enter into an agreement with the owner of a photograph for the exclusive use of the photograph in a cookbook, no one else could use the photograph in another
cookbook. Exclusivity can be as narrow or as broad as you choose. For example, you could expand the exclusivity of your permission agreement by obtaining the exclusive right to print the photo in any book, not just any cookbook.

Most permission requests are nonexclusive, meaning 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 included throughout this book offer you the option to choose exclusive or nonexclusive rights.

Term of Use

The length of time for which you are allowed to use a work 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 on 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 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 the owner's copyright protection lasts. After that, anyone can use the material without permission.

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 you go through the various chapters, this book will advise you on how to shape your permission agreement so that you obtain the rights you need for your purposes.

Plan Ahead for Permission

Expect getting permission 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 complete. 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.

Editorial Reviews

Computer Currents
The book offers excellent advice and guidance for licensing content, transferring information and linking to other sites.
Tech Trends
The best guide to getting permissions of all types written to date.
The Indie Band Survival Guide
We recommend a detailed book on the subject, Getting Permission: How to License & Clear Copyrighted Materials Online & Off...
The McHugh Memo
The book at the top of my recommendations is Getting Permission.... I have waited a long time for a book of this excellence, depth and breadth in rights and permissions. Stim has written an extraordinarily helpful book.
— John B. McHugh
Training Magazine
A comprehensive book you can turn to for guidance.
Midwest Book Review
"Creates a winning survey highly recommended for any general lending library...this comes from an attorney and is a 'must' for any seeking copyright and permission details."
From the Publisher
“The best guide to getting permissions of all types written to date.” Tech Trends

“A comprehensive book you can turn to for guidance.” Training Magazine

Product Details

ISBN-13:
9781413305180
Publisher:
NOLO
Publication date:
12/01/2007
Edition description:
Third Edition
Pages:
312
Product dimensions:
8.50(w) x 11.00(h) x 0.50(d)

Meet the Author

Richard Stim specializes in small business, copyright, patents, and trademark issues at Nolo. He practices law in San Francisco and has represented photographers, software developers, crafts people, publishers, musicians, and toy designers. He is the author of many books, including Whoops I'm in Business, Music Law, and Profit From Your Idea. Stim also produces audiobooks, and performs and records with two bands, MX-80 and angel corpus christi.

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