Chapter 1

Introduction to the Permissions Process

Permission: What Is It and Why Do I Need It?............................... 10

The Basics of Getting Permission.................................................. 11

Determine If Permission Is Needed........................................... 11

Identify the Owner...................................................................... 14

Identify the Rights You Need..................................................... 14

Plan Ahead for Permission........................................................ 16

Negotiate Whether Payment Is Required.................................. 16

Get It in Writing.......................................................................... 18

Overview of Intellectual Property Laws.......................................... 19

Permission Tools: Licenses and Releases.................................... 20

Licenses and Clearances........................................................... 20

Releases.................................................................................... 21

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 through ignorance. 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:

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.

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), which 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, which 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.

Plagiarism or Infringement

I am a romance novelist and occasionally I borrow material from other books for my historical romances. I’m confused about the difference between plagiarism and infringement.

A plagiarist is a person who poses as the originator of words he did not write, ideas he did not conceive, or facts he did not discover. “Plagiarism” is not a legal term; it’s an ethical term. You can plagiarize someone without infringing. For example, if a plagiarist only copies public domain materials, he can’t be sued for copyright infringement. And you can infringe without plagiarizing. For example, this whole answer is pretty much lifted from Chapter 14 of Stephen Fishman’s Nolo book, The Public Domain. (See … I’ve provided attribution; let’s hope he doesn’t sue— :-).) Which is worse? A whiff of plagiarism can damage a romance novelist’s reputation, while infringement means dealing with lawyers and hefty judgments.

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 redo the work, which is expensive and time consuming. The best policy is to start seeking all required permissions as soon as possible.

Negotiate Whether Payment Is Required

The primary issue that arises when seeking permission is whether you will have to pay for the permission you seek. Sometimes, the owner of the work will not require payment if the amount you wish to use is small, or if 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 in which he wants to include photographs of vintage accordions. He contacts the copyright owner of the photographs who, in return for a credit at the end of the film, signs an agreement allowing use of the photographs in the film. However, the agreement also provides that, if Sam uses the photographs in a poster or advertisement for the film, he must make an additional one-time payment of $1,500.

Although many uses of works may be free, you should usually expect to pay something—even a minimal fee—for copyright permission. For example, the evolving world of stock photos has made it possible to get some photo permissions for as low as $2. Or it could be a fairly hefty payment. For example, using a song in a commercial usually requires a payment of several thousand dollars.

Generally, permission fees are linked to the size of the audience your work will reach. A large metropolitan newspaper will have to pay more to use a photograph than a small-town newspaper. Commercial uses, such as advertisements, cost more than nonprofit or educational uses. The fees for website uses may depend upon the number of visitors to the site. In each chapter, we will discuss the likelihood of payment and the current rates for common uses. However, these figures can vary widely, as the copyright owner has discretion when charging a fee.

Cashing “Payment in Full” Check

I’m having a dispute with a company for which I granted permission to use an image. The contract says that they owe me $350. They claim I didn’t do the photos the way they wanted. Then, they sent me a check for $250 that says “Payment in full for photo rights.” Is it true that if I crossed out the “payment in full” and wrote “under protest,” I could deposit the check and still go after the other $100?

Court rulings are not always consistent on this, but the majority of courts say that if there is a dispute as to what is owed, and the party receiving the check knows that it’s intended as “payment in full,” depositing the check ends the dispute (known as “accord and satisfaction”). The rule doesn’t apply if there is no dispute (in which case the “payment in full” is meaningless) or if the dispute is not “honest”—for example, one party deceives the other, making it difficult to figure out what’s owed. Finally, if there is a dispute but the check is cashed inadvertently, the rule may not apply (courts are split on that issue). If you have deposited the check and wish that you hadn’t, the Dear Rich Staff advises that most state statutes give you 90 days to repay the check and get back into the dispute. Check your state’s Uniform Commercial Code (UCC Section 3-311).

What If You Hire Someone to Create a Work?

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 you withhold employee taxes for the person, and whether the person 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 person’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. Chapter 15 addresses these agreements. For a thorough analysis of acquiring rights from independent contractors, see The Copyright Handbook, by Stephen Fishman (Nolo).

Get It in Writing

Relying on an oral agreement or understanding 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. Get written permission agreements—do not rely 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 may still 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 $100, which Sam sends to Tom. After receiving the payment, Tom sends the photograph to Sam. Although they never put an agreement into writing, a permission agreement may be inferred from Tom’s conduct.

Overview of Intellectual Property Laws

A wide body of federal and state laws protects creative property such as writing, music, drawings, paintings, photography, and films. Collectively, this body of law is called “intellectual property” law, which includes copyright, trademark, and patent laws, each applicable in various situations and each with its own set of technical rules. When obtaining permission to use creative works, you’re concerned primarily with copyright law. However, trademarks, trade secrets, and publicity and privacy rights sometimes come into play when permission to use certain types of works is sought. Below is a summary of the various types of intellectual property laws that are relevant to the permissions process. Later chapters provide more details as needed.

Copyright. Original creative works such as paintings, writing, architecture, movies, software, photos, dance, and music are protected by federal copyright law. A work must meet certain minimum requirements to qualify for copyright protection (discussed in Chapters 8, 9, and 13). The length of protection also varies depending on when the work was created or first published. (See Chapter 8 for an explanation of copyright duration.)

Trademark. Brand names such as Nike and Avis, as well as logos, slogans, and other devices that identify and distinguish products and services, are protected under federal and state trademark laws. Unlike copyrighted works, trademarks receive different degrees of protection depending on numerous variables, including the consumer awareness of the trademark, the type of service and product it identifies, and the geographic area in which the trademark is used. (See Chapter 10.)

Right of Publicity. The image and name of a person are protected under a patchwork of state laws known as the right of publicity. These laws protect against the unauthorized use of a person’s name or image for commercial purposes—for example, the use of your picture on a box of cereal. The extent of this protection varies from state to state. (See Chapter 12.)

Trade Secrets. State and federal trade secret laws protect sensitive business information. An example of a trade secret would be a confidential marketing plan for the introduction of a new software product or the secret recipe for a brand of salsa. The extent of trade secret protection depends on whether the information gives the business an advantage over competitors, is kept secret, and is not known by competitors. (See Chapter 10.)

Right of Privacy. Although not part of intellectual property laws, state privacy laws preserve the right of all people to be left alone. Invasion of privacy occurs when someone publishes or publicly exploits information about another person’s private affairs. Invasion of privacy laws prevent you from intruding on, exposing private facts about, or falsely portraying someone. The extent of this protection may vary if the subject is a public figure—for example, a celebrity or politician. (See Chapter 12.)

Permission Tools: Licenses and Releases

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”).

Licenses and Clearances

A license is the legal right to do something that you would not otherwise be permitted to do. For example, you need a driver’s license to give you the right to drive a car. The owner of a copyrighted work can authorize someone else to use the work by granting a license to the user. For example, the owner of a photograph copyright can grant a license to someone else who wants to reproduce the photograph on greeting cards. 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 an image from a 1950s film. Don must obtain a license to reproduce the image from the owner of rights in the film.

Releases

A release is an agreement by which someone releases you from legal liability for a particular activity. In essence, the person is agreeing ahead of time to give up (or release) any right to sue you that may arise from a specific situation. Releases are often used to avoid lawsuits involving someone’s right of privacy (the right to be left alone) or right of publicity (the right to control how one’s image, voice, or persona will be used to sell things). A release may also protect against claims of defamation (a false statement that injures someone’s reputation). 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. Any audience member selected must sign a release before appearing on the show. The release protects the TV show from any potential lawsuits by disgruntled participants who are unhappy with the results of their makeovers 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. Despite what it says at the top of the agreement, either type of agreement can be used to grant rights or to prevent lawsuits. Because of this overlap, the title of an agreement is less important than the content. Always review any agreement carefully (and compare it to the model agreements in this book) before assuming what rights it covers.