If you want to use copyrighted material in your own published work (whether a print book, magazine, or online venue), then it may be necessary to request formal permission for its use. And whether you really need to request permission depends on whether your use would fall under fair use guidelines.
Determining what’s fair use is a gray area, and depends on your risk tolerance. To eliminate all possible risk, then it’s best to either ask for permission or eliminate use of the copyrighted material in your own work. Here’s a flowchart that can help you evaluate what you might need to ask permission for.
Three important caveats about this chart
- Nothing can stop someone from suing you if you use their copyrighted work in your published work.
- The only way your use of copyright is tested is by way of a lawsuit. That is, there is no general policing of copyright. Therefore, how you handle copyrighted content depends on how risk averse you are. If you decide not to seek permission because you plan to use a fair use argument, be prepared with the best-possible case to defend your use of the copyrighted content in the event that you are sued.
- If you intend to produce material that is accessible worldwide and in digital form (such as content on the internet, ebooks, etc), and if you are using content considered in the public domain in the United States, you should double-check whether the content is also in the public domain in other countries. You can learn more about this issue in The Public Domain by Stephen Fishman.
If you’re concerned about your risk, you can also search for the rights owner’s name and the keyword “lawsuit” or “copyright” to see if they’ve tried to sue anyone. However, just because someone hasn’t sued yet doesn’t mean they won’t sue you.
If you seek permission, you need to identify the rights holder
Once you’ve decided to seek permission, the next task, and one of the most difficult, is identifying who currently holds the copyright or licensing to the work. It will not always be clear who the copyright holder is, or if the work is even under copyright. Here are your starting points.
- First, verify the actual source of the text. Sometimes writers use quotes from Goodreads or other online sources without verifying the accuracy of those quotes. (As someone who is misattributed on Goodreads, I can confirm: people are misattributed all the time.) If you don’t know the source, and you don’t know the length of the source work, and you don’t know if what you are quoting is the “heart” of the work, then you are putting yourself at risk of infringement.
- If you’re seeking permission to quote from a book, look on the copyright page for the rights holder; it’s usually the author. However, assuming the book is currently in print and on sale, normally you contact the publisher for permission. You can also try contacting the author or the author’s literary agent or estate. (Generally, it’s best to go to whomever seems the most accessible and responsive.)
- If the book is out of print (sometimes you can tell because editions are only available for sale from third parties on Amazon), or if the publisher is out of business or otherwise unreachable, you should try to contact the author, assuming they are listed as the rights holder on the copyright page.
- You can also check government records. Most published books, as well as other materials, have been officially registered with the US Copyright Office. Here is an excellent guide from Stanford on how to search the government records.
- For photo or image permissions: Where does the photo appear? If it’s in a newspaper, magazine, or an online publication, you should seek permission from the publication if the photo is taken by one of their staff photographers or otherwise created by staff. If you’ve found the photo online, you need to figure out where it originated from and/or who it’s originally credited to. (Try using Google Image Search.) When in doubt, seek permission from the photographer, keeping in mind that many photographers work through large-scale agencies such as Getty for licensing and permissions. Photo permissions can get complex quickly if they feature models (you may need a model release in addition to permission) or trademarked products. Here is an excellent, in-depth guide if you need it: Can I Use That Image?
Generally, you or your publisher will want nonexclusive world rights to the quoted material. “Nonexclusive” means you’re not preventing the copyright owner from doing whatever they want with the original material; “world rights” means you have the ability to distribute and sell your own work, with the quoted material, anywhere in the world, which is almost always a necessity given the digital world we live in.
Also, permission is generally granted for a specific print run or period of time. For example, if you seek permission for a 5,000-copy print run, you’ll need to secure permission a second time if you go back to press. (And if you publish a second edition, you’ll need to seek permission again.)
If you’re under contract with a publisher
Just about every traditional publisher provides their authors with a permissions form to use for their project (be sure to ask if you haven’t received one!), but if you’re a self-publishing author, or you’re working with a new or inexperienced house, you may need to create your own.
To help you get started, I’ve created a sample permissions letter you can customize; it will be especially helpful if you’re contacting authors or individuals for permission. It will be less necessary if you’re contacting publishers, who often have their own form that you need to sign or complete.
To request permission from a publisher, visit their website and look for the Permissions or Rights department. Here are links to the New York publishers’ rights departments, with instructions on how to request permission.
- Harpercollins permissions information
- Penguin Random House permissions portal
- Macmillan permissions
- Simon & Schuster permissions
- Hachette permissions
Will you be charged?
It’s hard to say, but when I worked at a mid-size publisher, we advised authors to be prepared to pay $1,000–$3,000 for all necessary permissions fees if they were quoting regularly and at length. (Publishers don’t cover permissions fees for authors, except in special cases.) If you’re seeking permission for use that is nonprofit or educational in nature, the fees may be lower or waived.
What if you don’t get a response or the conditions are unreasonable?
That’s unfortunate, but there is little you can do. If you can’t wait to hear back, or if you can’t afford the fees, you should not use the work in your own. However, there is something known as a “good faith search” option. If you’ve gone above and beyond in your efforts to seek permission, but cannot determine the copyright holder, reach the copyright holder, or get a response from a copyright holder (and you have documented it), this will be weighed as part of the penalty for infringement. This is not protection, however, from being sued or being found guilty of infringement.
Sometimes, the best strategy is to avoid seeking permission in the first place. With a little editing or reworking, it may possible for you to abide by fair use guidelines; in such cases, you don’t have to seek permission. Ideas are not protected by copyright, but the expression of those ideas is protected. So, putting something in your own words or paraphrasing is usually okay, as long as it’s not too close to the way the original idea was expressed.