Creative License, Part II
To Clear Or Not To Clear (Your Perms)
Good morning and welcome to Shelf Life where today, just this once, it is better to ask for permission than forgiveness.
Asking forgiveness after you’ve done something you know is wrong is best reserved for other areas of life than borrowing others’ intellectual property (IP). For instance, sometimes your partner specifically prohibits you from acquiring anymore three-tier rolling carts because you already have too many. But then you are at the store and you see another three-tier rolling cart and you remember you have a perfect use for a three-tier rolling cart so you get it, and bring it home, and assemble it, and stash it in a corner. The worst thing that can happen is your partner makes you throw out a three-tier rolling cart.
But if you borrow someone else’s copyrighted IP without first securing permission, you could find yourself in a whole world of trouble. The rightsholder could demand you remove your product from sale, could demand restitution for the theft of their IP, or could sue you for infringement. If you’re going to reuse any part of someone else’s copyrighted work within your own work, and if that reuse does not fall under the auspices of the Fair Use Doctrine, then you need to secure permission before using the material.
Last Thursday’s Part II covered how to determine whether the material you’re reusing requires permission, and how to locate the rightsholder. Today, we’re going over how to request and secure the permission, how to carry out the obligations you undertake when you receive permission, and where and how to keep that permission handy in case there is ever a question of infringement.
Let’s get to it.
3. Securing Written Permission
Once you have determined the rightsholder for a given work and their representative, you will typically need to fill and submit a form, or send an email, requesting the permission officially. Before you begin the request, make sure you have the following information handy and ready to share.
You will need to specify the title and author of the work you wish to license, as well as the amount of content you wish to reproduce and the specific content you wish to reproduce. This may be something like, “To Dress a Shelf by Catherine Forrest, chapter 2 in its entirety, 2476 words, pp 155 to 164.” Read the rightsholder’s instructions carefully to make certain you provided all the information they want. Err on the side of more information rather than less, because if the rightsholder has to come back to you with clarifying questions, the entire process will be delayed.
You will also need to supply your information and information about your work in which the copyrighted material will be reproduced. This means your name (legal) and pen name, if you have one, the title of the work, and the approximate or estimated length. You will also need to disclose whether you are requesting permission as the author of the work or as a publisher, and if a publisher you will likely need to disclose whether you are a nonprofit or not. Even if you may self-publish later, if you are the author of the work you are applying for permission as the author of the work and not the publisher—especially if you have established an LLC under which to publish. Publishers often have to pay more for reuse rights than authors do for the same.
For an example of a rightsholder that allows permission requests via form, here’s a screenshot from HarperCollins’s permissions website:
Very straightforward. I simply fill out this request form and allow 16 to 20 weeks for my request to be processed. This website notes that there’s a minimum fee of $100 for permissions, implying that the cost could also be much more. The rush fee is also stated as a minimum, meaning it could cost more than $50 to rush your request.
In the event that a rightsholder asks for an email rather than a form submission, make sure you carefully read all the instructions on the site before sending your email. Given that the wait time may already be substantial, you don’t want any missing information to delay your request.
4. Carrying Out Your Obligations
In securing permission, you will almost certainly be asked to do a few things in exchange for the permission grant. One of those is paying a fee.
You will likely have to pay some amount of money for permission to reuse someone else’s copyrighted material in your own work—after all, wouldn’t you want to receive some sort of remuneration in exchange for the use of your copyrighted work in someone else’s book? Of course you would. Payment is usually made online via credit card. If you are working with a traditional publisher, you can inquire whether they will reimburse you the permissions fees. They may not reimburse the costs, but it doesn’t hurt to ask.
In addition to the payment, you will likely be asked to make an attribution somewhere in your work—that is, you will be asked to explicitly state somewhere in your work that certain material was reproduced from somewhere else, and who is the original author.
The rightsholder, when they grant your permission request, should give explicit instructions on where to include the attribution and the wording that should be used. Do not edit the language provided by the rightsholder or change it in any way, and do include the attribution exactly where and how you are instructed to do so by the rightsholder. If you do not include the attribution exactly as stipulated by the rightsholder, then you may find yourself infringing their copyright after all.
The attribution is likely to be placed in one of the following locations:
At the site of the reproduced material, that is, in a footnote, caption, or legend on the same page as the material that is being reproduced. If you are reproducing an image, the attribution will most likely need to be in placed in the caption.
On the copyright page.
In an acknowledgments section.
In the event that a rightsholder does not stipulate how and where to place the attribution, you can consider these pointers:
The phrase courtesy of (as in, “this image reproduced courtesy of Catherine Forrest”) means you were granted permission for free and did not pay any money to reproduce the material.
The phrase with permission of (as in, “this image reproduced with permission of Catherine Forrest”) may be used when money changed hands.
An image should always carry the attribution in the caption on the same page as the image, and may also include additional attribution on the copyright page.
For any other material, the copyright page is the best place for the attribution.
If you were granted permission for free, then an acknowledgment is also appropriate.
5. Archiving the Written Permission
Now you have secured permission and have carried out your obligation to the rightsholder—what’s left to do? Archiving your permission so that you don’t need to worry about any of this coming back to bite you.
If you are working with a traditional publisher, you should submit to them all the documentation you have regarding the permission. This is primarily the official written grant of permission, which may have come via mail or via email, but also any correspondence you have with the rightsholder, proof of payment (ie, a receipt) if you paid through a website, and an auto-confirmation of your request if you submitted through a form. Is this overkill? Yes. Will your publisher appreciate your diligence? Probably, also, yes.
If you are self-publishing, you will want to make sure you archive this documentation carefully. I recommend the same backup structure as I would recommend for a digital manuscript—store it in the cloud and at least one other place, such as a hard disk drive, a thumb drive, or even printing out and storing a hard copy. The permissions process is a legal exchange of rights and the documentation you collect regarding the transfer of license could be needed to cover your . . . backside . . . in court one day—so make sure you store it in such a way that you can always put your hands on it. Even if you lose your Gmail password or Dropbox goes out of business. Do I expect these things to happen? No. Do I have debilitating anxiety and worry about all eventualities? Yes.
So: Here you have it. Hopefully, I’ve covered everything an author could want to know about securing permission to reuse material. I’ll share one final thought before I sign off, which is on the topic of fair use. The Fair Use Doctrine is deliberately vague and always up for interpretation by a court in the event of an infringement lawsuit. While there are things that definitely fall under fair use and lots of things that definitely don’t fall under fair use, there’s a tremendous gray area in between.
Due to this gray area, it can be really difficult to determine whether you need to request permission for something before using it, even with the guidance I provided in last week’s companion to this article. From that gray area, two important considerations:
First, better safe than sorry is not always the answer. If you request permission for something that really could have fallen under fair use, the rightsholder will still charge you for that permission. It is not their responsibility to determine what falls under fair use and tell the requester “no you don’t need permission for this, it’s fair use.” This means you could easily pay for something that should have been free.
Second, no one other than a court of law can assure you up front that something is fair use. You have to use your best judgment when deciding not to request permission and going forward with the assumption that something is fair use.
Use your best judgment, and err on the side of caution, but do use your judgment on the subject of fair use—don’t pay for something you could legally use for free. But if you’re not sure you can use it for free as fair use? Secure that permission in advance—it will be much more expensive down the road.
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