First: The Basics
Q: Who owns copyright in a work?
ALL creative work, the moment it is created, is protected by copyright law, and the owner (creator) has the following rights:
- to reproduce the copyrighted work in copies or phonorecords
- to prepare derivative works based upon the copyrighted work
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
The act of publishing does not start copyright protection; the work being created did. The creator can give any and/or all rights in the work to someone else exclusively or non-exclusively, typically through a publishing contract.
A common misconception is that, because the copyright page of a book lists copyright to the author, the author can do whatever he or she wants with the work. Not true; though yes, that page may state the author still owns copyright (only if ALL of the 6 rights above are transferred to another rights holder can the author/creator no longer claim copyright), the author is subject to whatever terms were granted to the publisher exclusively. I.e., the author cannot grant permission for the work to be re-used in another if he or she granted the publisher exclusive rights to reproduce and distribute (#1 & #3).
Permission requests must be made to whoever controls the rights to what you need – i.e., a request to translate would go to whoever controls the rights to #2.
Q: When Do I need to Request Permission?
AFTER a publishing contract is in place (or AFTER you decide to self-publish), if you wish to reprint an excerpt which you didn’t create. In order to request permission you will need to know your publication date, publisher, distribution territory, and print run, which is why you should request only after you have this information.
Q: What Happens if I Don’t?
You will be eaten by the perms monster.
Ok, maybe not. But you are liable for any infringements. If you’re self-published, and Amazon or your distributor finds out there is material in your work used without permission, they can immediately remove the work from sale and/or launch an investigation into the claim, which can lead to legal action and refunding customers. Don’t ever assume people won’t notice your infringements: see here.
If you signed a publishing contract, you could also be in breach of your contract; many contracts contain language that makes the author liable (responsible) for clearing permission for anything that isn’t his or hers – which means that not only can the copyright owner take you to court…so can your publisher.
That said, a large chunk of copyright violations are settled out of court, with the violator paying damages to the copyright owner. Damages can amount to the cost of permission for each book sold, to cost of actual loss due to infringement. The big issue is that when you’re caught…you have very little bargaining room. It is always cheaper to request permission than to have to pay for it later.
Q: Are there resources to help me do this?
Absolutely. Your agent or publisher may have a permission specialist who can assist. Past that, there are freelance permission coordinators who can request and negotiate permissions on your behalf. Here are a few:
The Permissions Company (for a number of years, known as the Perms Dude; can't beat that!)
Copyright Clearance Center
Q: When can I apply fair use?
Don’t count on your work falling under fair use guidelines if you’re making profit from it; fair use is very hard to justify for commercial works, no matter how much of an excerpt you’re using. Copyright law is intentionally vague on fair use. These are the official guidelines:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
That all said…here’s a nifty little comic all about fair use. Rather lengthy, and directed to film, but applicable and helpful all the same. (What, you don’t want to read a COMIC about COPYRIGHT?!)
Ok. Now that we’ve gone through the basics (in which I tried to be as annoyingly indistinct in my assertions as possible…)
…on to: The Tips!
Tip: don’t assume something is in the public domain, just because it was written before 1923!
Key word here is WRITTEN. Copyright law does differentiate between published and non-published works. Works published prior to 1923 are now in the public domain – but there are some tricky situations people commonly overlook, such as posthumously published works, translations of previously published works, and corporately owned works.
- Translations: if you were using Aristotle’s original Greek text…sure. That could be in the public domain. But unless you’re using a translation that was ALSO published prior to 1923…it’s likely under copyright.
- Posthumously published works: Emily Dickinson is a great example; though her works were all created prior to 1923…the majority of them weren’t first published (in actual, unedited form) until AFTER 1923. And so they are still under copyright. Same with Mark Twain’s unpublished works – they were published posthumously…and still under copyright.
- Corporately owned, or “work for hire” works: corporately owned works get LONGER copyright protection – 120 years.
The bottom line: don’t assume. Here’s a very nifty chart which outlines copyright duration for published and unpublished, but otherwise…do your research!
Tip: Fees ARE negotiable
It’s impossible to put an estimate here on how much permission will cost. Rights holders’ fees vary depending on what kind of rights you ask for – how many territories (world, North American, US?), formats (print, ebook, audio?), and copies (print run) you need or want. And while many may have standard fees (including the Big 5 publishers), these fees may also vary depending on what you’re requesting. So, you might be able to negotiate by lowering your request to North American instead of World, etc.
The bottom line is: ask. Ask if there’s room to lower the fee.
Tip: Avoid using material that needs to be licensed…period!!
If all of the above hasn’t yet convinced you that that one sentence from HOW TO AVOID HUGE SHIPS really ISN’T all that necessary for the prologue of your book…here’s another: even if you do request and get permission to use it…you have to keep track of the license.
Many rights holders will grant permission for a limited term (number of years) or edition (first edition only) or print run. Which means, at the end of that term…you have to request again. For example, your license might grant you rights for the first printing of your book, up to 10,000 copies, no revised or new editions; if you sell over 10,00 copies, go into another printing, or come out with a new edition of the book…you have to request again.
Tip: So, if you do end up requesting permission, make yourself a nice spreadsheet that tracks the following:
Max copies allowed, edition restrictions, territories granted, formats granted, subsidiary rights granted, expiration date, copies requested/sent on (yes, they might ask for a copy of the book), misc license terms, and fee paid/paid on/check number.
If you ARE limited to a print run, be sure to check your royalty statements; you’ll need to keep track of when you hit that number!
Finally, these are some of my absolute favorite copyright and permission websites to help navigate the perms world:
- Project Gutenberg – thousands of public domain works in easy, downloadable formats, including classics
- Wiki Commons – contains thousands of copyright-free images and works (be careful to check what license it’s under, though!)
- Copyright Clearance Center – lists books by publisher and rights holder; a good starting place for searching for a rights holder, and requesting permission
- Searchable Copyright Renewal Records (post 1978) – search if a book’s copyright was renewed! If not, it is in the public domain.
- Searchable Copyright Renewal Records (pre 1978)
- Copyright.gov – lists all registered works; you can search for your book!
- Penguin Permissions Database – if Penguin ever published an edition of it…they’ll list who owns the rights here
- WATCH – lists contacts for author estates
- BMI Repertoire – lists copyright holders/contacts for song lyrics
**note, I am not an attorney, so nothing in this post, nor comments below, constitutes legal advice!**