Permissions, Releases, and Copyright…Oh My!
Blogger: Mary Keeley
The editor of a manuscript I received last week alerted me that the author had quoted a portion or the whole of two articles the author found on the Internet. This author did give the sources of the articles, but was that enough?
I am inserting here that I am not an attorney. Therefore, my advice here and in my responses to your questions shouldn’t be taken as that of an authority.
The answer to that question is no, not if you want to be completely protected from copyright violation. I thought a refresher on copyright, permissions, and releases might be useful. Whenever you use another person’s words, photos, drawings, graphics–any material or quote that belongs to another person, you have to ask yourself: Do I need to get permission for this?
It’s better to be safe than sorry. Publishing contracts include language that protects the publisher from claims against your work and the resulting legal costs and fines should the claim be upheld in court. There is no allowance for an author’s ignorance of legalities. The worst case scenario when the author is found guilty of misrepresentation or infringement is that the publisher will cancel the contract, stop further printing of the book, contact distribution outlets to return their copies for a refund, and destroy remaining inventory in their warehouse. I am aware of this happening. You may have heard of such occurrences too. Publishers carry insurance to protect them. But for the author, who has to pay back all unearned advance money, it is also a career killer.
Most publishing contracts clearly state it is the author’s responsibility to acquire copyright permission, which is a written document, signed by the person whose material you want to use in your book or article. It declares that the person allows you to use his or her specific material in your book or article. The publishing contract often requires that these signed permission forms be submitted when you turn in your manuscript–for good reason. Without a signed permission for each portion of another person’s work you are including, your book isn’t considered publishable as is. What if the person declines to grant permission? His or her material will have to be taken out of your manuscript. If this information isn’t known until your book is deep into the editing and production process, the delay could seriously affect the in-house publishing schedule as well as the printer’s schedule and marketing and promotion efforts.
If you run into dead ends trying to reach a copyright holder, someone in the Rights department at your publisher (if you are already contracted) might be able to offer suggestions. Or you can contact the Copyright Office (www.copyright.gov) to obtain a copyright registration or assignment search.
When a work is in the public domain, meaning the copyright has expired, it can be quoted without obtaining formal permission if there aren’t trademark or unfair competition laws (privacy, publicity, and defamation) that still apply. It’s always best to check.
You’ve probably heard of the Fair Use Doctrine. It’s purpose is to keep copyright laws from being applied too stringently. Uses that qualify for “fair use” are criticism or review, news reporting, classroom teaching, or research. Such uses don’t require obtaining permission. There is no concrete formula to determine how much of a person’s material you can use under this doctrine. Publishing house guidelines range from 200 to 300 words. But it’s always best to obtain permission because it’s such a gray area.
Signed releases protect you when you interview a person for your work. A release document states that the interviewee consents to your use of his or her name, words, likeness and associated characteristics in your work. It is the interviewee’s agreement not to sue you for invasion of his or her rights (1) of privacy, (2) to benefit from his or her own name recognition, or (3) of protection against misquotes or false statements that harm his or her reputation. Currently, publishers don’t require these written and signed forms. But I highly recommend that you protect yourself against potential liability by always having interviewees sign a release, even–especially–when it involves a family member or friend. Never think it wouldn’t happen to you. Interviewees can forget they said something in the interview or claim you quoted them incorrectly or file a claim to try to benefit financially. I heard about a threatened claim last night. Fortunately, the interviewer had obtained a signed release from the interviewee.
These are the basics about copyright permissions and releases. For a more in-depth education on the subject, I recommend purchasing The Copyright Permission and Libel Handbook, by LLoyd J. Jassin and Steven C. Schechter. You’ll appreciate having this handy reference in your writing library. This is a pretty dry topic for a blog post, but occasionally it’s worthwhile to offer such refreshers.
Was any of this information new to you? Do you have any experiences with these issues that you can share? Have you asked people you have interviewed to sign a release in the past?
Copyright, permissions, and releases can be confusing. Here are a few basics. Click to Tweet.
When do you need to obtain copyright permissions? What constitutes “fair use”? Learn the basics. Click to Tweet.