Creative License, Part I
Licensing and Permissions for Writers
Spectrum has launched. I repeat: Spectrum has launched. Spectrum is an anthology of queer, neurodiverse short horror fiction, edited by Aquino Loayza, Freydís Moon, and Lor Gisalson. This anthology contains twenty short stories, including mine—“These Thirteen Simple Tricks Will End Your Sleep Hallucinations For Good.” You can order Spectrum at Third Estate Books or snag the Kindle edition from Amazon. What are you waiting for? You could be reading it right now!
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Good morning and welcome to Shelf Life, where sharing is caring. Today—and in Tuesday’s Part II—I’m going to walk you, the author, through securing rights/permission/license to republish content to which you do not own the copyright.
You may be thinking: “Why would you want to do this? I’m a writer, I’m in the business of writing my own stuff, not publishing somebody else’s stuff!” However, many writers want to borrow bits of things here and there to use in their own writing. This is very common in academic and scholarly publishing where authors frequently wish to reuse figures from others’ work, but fiction writers do this, too. It’s not unusual for a fiction writer to want, for instance, to include song lyrics somewhere in their book. Perhaps as an epigraph or perhaps as part of the text. Guess what? Unless you wrote the song, that’s a no-go.
Unless—you acquire permission from the rightsholder. But how do you do that? If you want to include lyrics from “Like a Virgin” do you just ring Madonna on the phone? You have her number, right? Actually, do we know for sure that Madonna is the rights holder to “Like a Virgin”? Just because she sings it doesn’t mean she’s the copyright owner. Neither the music nor the lyrics were written by Madonna, and she didn’t produce the song. She didn’t play any of the musical instruments on the track., She just sang it. Whose song is it, anyway—legally speaking?
I’ll come back to this a little later.
If you go the traditional publishing route, you may or may not be offered help from your publisher to acquire rights to reprint copyrighted material in your book. Many publishers will not foot the bill for the license, nor will they spare the personnel to hunt down the rights for the author. It’s expected—again, by many publishers—that authors will secure rights on their own or else will cut the copyrighted material. This is in part because publishers don’t want to go to the time and expense but in larger part because rightsholders often give better terms and pricing to authors (ie, an individual person) than they would give to a business.
And if you’re going the self-publishing route, you’re on your own. Any material that requires permission to reprint needs to be cleared, by you, before publication—or else you’re the one whose tushie will be on the line if the rightsholder decides to sue for infringement. Will the rightsholder sue for infringement? Depends—on whether the rightsholder discovers they’ve been infringed, on how litigious/protective of their IP the rightsholder is, and whether they’re amenable to settling the issue out of court. The point is that they can.
So before you self-publish a work that contains any material you didn’t write yourself, or before your trad publisher goes to press, you’ve got to clear your perms (permissions). Clearing perms is a multistep process, through which today’s Shelf Life (and Tuesday’s) will walk you. The steps are thus:
Identify any material that requires permission.
Locate the rightsholder of that material.
Contact the rightsholder and secure written permission to use the work.
Carry out any responsibilities you have in exchange for the permission.
Archive the written permission.
1. Identifying Material That Requires Permission
Material that requires permission to reprint is anything under copyright—that is, not in the public domain—that does not fall under the the auspices of the fair use doctrine. To quote our esteemed government, Fair Use is:
a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.
If you are writing fiction and you want to use a quote from a song, a play, a poem, or another book, then your claim to fair use can’t rely upon criticism, comment, reporting, teaching, or research—that is, you’re not claiming you need to reprint the material for educational purposes or for the public interest. However, under section 107, consider the third point:
in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include . . . (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole. . . .
This is the part you would use to say the copyrighted material you’re reprinting falls under fair use or it does not.
Generally, if you just want to use a quotation from a book or play—for instance as an epigraph at the beginning of your book or at the start of a chapter, or to have one of your characters quote it in dialogue—then you may claim fair use as you are reprinting an insubstantial amount of the work as a whole. One sentence from a book is probably like 1/3000th or 1/3500th of that book. Fair use would apply.
However, poems and song lyrics are fraught with peril because the length of the overall work is much shorter. There is typically no excision of a song or poem that would be considered insubstantial for the purposes of the fair use doctrine.
So, again, anything that is under copyright and for which your reprinting does not constitute fair use, you need to secure permission.
2. Locating the Rightsholder
Step 2 is to figure out who you have to speak with to get permission. This probably means identifying the rightsholder and their publisher or representative. As I mentioned earlier, you can’t just call up Madonna personally and ask to refuse her intellectual property. She’s not exactly easy to reach. You would have to know not only that Madonna is the rights holder but also know who represents her interests in this intellectual property so you can clear the permission with them.
So, first: Who is the author or writer of the material you want to reprint? This is whoever’s name appears on the byline, the front cover, the chapter opener, et cetera. The person who has nominal credit as the writer. For books and poems, this is the author. For albums or songs this is the artist. For plays or screenplays, the playwright or screenwriter. You will need their name as well as the title of their work.
Let’s say I want to find out how to license permission to reuse part of One Hundred Years of Solitude, by Gabriel Garcia Marquez, in English translation. My first stop is the Haus of Bezos, which I use to locate the publisher:
Since this was published by Harper Perennial, a division of HarperCollins Publishers, my next stop will be their permissions department.
What if it’s not so obvious who is the rightsholder, as we discussed earlier regarding “Madonna’s Like a Virgin”? In this case, let’s take ourselves down to the Copyright Office’s public catalog. This will let you search through many—though not all—works copyrighted in the United States and find out who is the rightsholder.
Searching for the title “Like a Virgin” brings up more than 100 results, but the one from 1984—the earliest—seems is the best bet.
Clicking on that record confirms that I have found the material I was looking for—the song performed by Madonna—and shows me who are the copyright claimants to this song:
Those are four distinct entities—but one of them is probably going to be able to give me permission to quote “Like a Virgin” in the epigraph to my memoir—if I can afford it.
Now that I’ve located the rightsholder or their representative, the next step is to contact them and secure written permission. That’s . . . sometimes easy and other times not so much. Make sure you tune in Tuesday for the skinny on how to get the permission you need from the rights owner.
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