As a child, one of the first rules I learned was to precede a request with “please.” To my young mind, “please” had magical powers. Even if I didn’t get what I wanted, “please” usually elicited a polite albeit firm form of “no.” I still recall my shock when I first read Oliver Twist and young Oliver, “desperate with hunger, and reckless with misery” pled for a second serving of gruel. “Please, sir,” he said, “I want some more.” His reward was a blow on the head with a very large ladle. My adolescent mind raged at the injustice of such a response to the word “please.”
Decades later, as a literary attorney, I think of the word “please” as an important word when it comes to requesting what the literary world calls “permissions.” Authors of all kinds often want to enrich their writings with segments of copyrighted materials by others—e.g., with phrases, poems, lyrics, photos, or illustrations. Be aware that if you do decide to use a third-party’s materials, you must request permission or have a good reason why you were unable to make that request.
The most legitimate excuse is that you were unable to locate the publisher (who may now be out-of-business), author (who may be deceased), or author’s estate and could find no surviving copyright claimant. You should make what the law calls a “good faith effort,” i.e., you exhausted all reasonable means to locate the copyright owner. To prove you have done so, maintain a written record of your research and any use of attorneys or agencies to trace the publisher or copyright owner.
A limited budget, lack of time, and ignorance of research tools or the licensing process do not amount to valid excuses for exploiting third-party materials without permission. Although self-publishers, in particular, claim to have adopted the role of a publisher, most have no idea that what a traditional publisher would demand of an author is what every self-publisher should demand of themselves–that they obtain written permission before using any other author’s copyrighted materials. Why? Because no legitimate publisher wants to risk an infringement suit, and use of a copyrighted work without permission amounts to infringement.
Copyright is a two-sided coin. Do unto other copyright owners as you would want them to do unto you—ask them to grant permission with the same respect you would enjoy from someone who seeks your permission to use your work. If there is a licensing fee and you can’t afford it, try to negotiate. And if that fails, then find another quote or lyric in the public domain or—disappointing as it may be–do without and substitute your own creativity.
Below, I’ve pointed out a few well-recognized paths to follow when it comes to research as well as some basic rules. Keep in mind, though, that every rule has exceptions.
First, learn basic terminology. When you request permission to use a third-party’s copyrighted materials, you are asking for “permission” or a “license” to use those materials. The permission form or license will detail the terms you and the third party agree to. The third-party who owns the copyrighted materials you would like to license is the “licensor.” You are the “licensee.” Similarly, if I request a license to use your materials, you then become a licensor and I am a licensee. There are many examples of licensing forms on legal websites and writers’ magazines and books. Read a few to get the gist of how simple or complicated a license can be.
Second, if you find materials you would like to license, the basic information you want is, of course, the author’s and publisher’s names but also the contents of a copyright notice if there is one. If the publisher has not stated when the materials were first published, the notice will provide a copyright date and the name of the copyright owner at that point in time. In books, the copyright page is usually found on the back side of the title page. If the materials are part of a film or television show, the copyright notice is often at the end of the credits. If you want to license content in a magazine article, the copyright notice for the issue may appear in the first few pages along with the name of the publisher. Typically, the issue’s date is on the cover, sometimes with an identifying number. With magazines, the publisher’s name is usually most important because they may have commissioned the work in which you’re interested and own the copyright. If they do not control the copyright, they should put you in touch with the author.
Third, two factors are particularly important when it comes to copyright notices for work published in the US.
- If you read this article during 2022, and you find a copyright date to indicate the work you want to use was published in the US before January 1, 1927, the work is in the public domain and available to you without permission.
- Note that every year on January 1, the public domain boundary line will advance one year. Thus, if you read this in 2023, anything published prior to January 1, 1928, will be in the public domain.
- As of March 1, 1989, US copyright law no longer required authors to add copyright notices to their work. However, copyright notice was mandatory prior to that date. If you find a work that was published on or after January 1, 1927, and before March 1, 1989, and it lacks a copyright notice, it is probably in the public domain. However, because there were some exceptions to the notice requirement and important changes to copyright law during this period, do your research to be sure.
- Finally, if you find work that appears to have been published after March 1, 1989, and it has no copyright notice, it is probably protected because, as mentioned above, copyright notice was no longer required as of that date. Many magazine publishers no longer include copyright notices. Most book authors, website owners, bloggers and traditional publishers do continue to use copyright notices. I encourage you to follow their lead.
Fourth, when trying to determine the current owner of a copyright, you should research the US Copyright Office files. There is a wealth of information filed or recorded by authors, estates, claimants, and publishers for many decades. You can find registration certificates identifying a work’s original copyright owner (which may be a business), the author, date of publication, sources of underlying materials, contact persons, and pertinent addresses. Additionally, the office houses recorded assignments or other documents memorializing the transfer of copyright ownership to third- parties or publishers. If you find it too challenging to perform this type of research, the Copyright Office offers research services for a fee. Here, too, there is a wrinkle. While I may have written and self-published my book and, thus, hold the copyright, I may not have registered the copyright. If so, you will not find me in the Copyright Office database or in the Library of Congress. The Library of Congress collects, among other things, published works sought by the nation’s libraries. For more information about the Library of Congress, see https://www.loc.gov/publish/cip/faqs/#eligible.
Fifth, for the most accurate and well-presented information about copyright research and copyright law, use university websites and the Copyright Office at Copyright.gov. There are several excellent university sites but two of my favorite resources are at Stanford University and Cornell University. Stanford University provides two excellent pages addressing copyright research at https://fairuse.stanford.edu/overview/copyright-research/getting-started/ and https://fairuse.stanford.edu/overview/copyright-research/searching-records/. Cornell University has a chart delineating copyright protection for unpublished and published works in the US for almost one hundred years at https://guides.library.cornell.edu/copyright/. The chart also includes works published abroad as well as sound recordings.
If your research looks as if it may lead you to feeling like Oliver Twist, i.e., “reckless with misery,” contact a writer’s organization or a publishing, intellectual property, or literary attorney. Most attorneys will not charge you for the fifteen to twenty minutes we may need to determine whether we can help and to advise what we charge. And I promise, whether or not you say “please,” none of us will hit you with a ladle.
Denise Gibbon, Esq. is a Publishing Contract Consultant and Literary Attorney at Above the Dotted Line (see www.abovethedottedline.com) and the creator of an audio-visual series for authors titled Copyright to Contract to be published in March 2022. You can contact Denise at email@example.com.
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