Fair Use and Asking Permission

Mary Keeley

Blogger: Mary Keeley

In my March 22 blog “3 Tips to Prepare Content for New Technologies,” Cynthia Ruchti brought up a good point about permissions as they relate to imminent new technologies. Since general questions also have been asked in recent posts, it might be helpful to dedicate an entire post to permissions. By the end of our discussion today, I hope the cloud of confusion will lift and you will feel equipped to know when you need to request permission and how to go about acquiring it.

Fair Use

The U.S. Copyright Office Fair Use Guidelines, Section 107, lists six purposes for using a particular work that are considered fair: For “criticism, comment, news reporting, teaching, scholarship, and research.”  It goes on to list four factors you need to consider in deciding whether your intended use can be considered fair:

  1. “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.”

The Section goes on to state that the boundary between fair use and infringement is unclear.

  • “There is no specific number of words, lines, or notes that may safely be taken without permission”
  • “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” In all the editorial sources I have researched, the consensus is that 275–300 words can be extracted from a book-length work without seeking permission IF you include a credit line referencing the copyright holder, year, and source. For other size works, the allowable portion is based on a proportionate percentage of the work. For songs and poetry, it would be one or two lines, unless it is public domain.

The way I’ve written the two lists above offers an example of fair use treatment. I’ve credited the source (along with the link since it is available online) and put quotation marks around the portions extracted.

When You Need to Request Permission

  • If you want to excerpt a larger portion of a book, newspaper or magazine article, contact the publisher to request permission. Most publishing contracts allow the publisher to grant permission for portions of the author’s work. It serves as free promotion of the work. And the publisher can require payment, if it so chooses. Email correspondence speeds the process and constitutes written permission. The publisher will want to know the exact portion of text you want to excerpt, title of the publication, and author, as well as the title and subject of your book or article in which you plan to insert the excerpt. But let’s say you just found this excerpt and don’t have time to wait for approval of your permissions request. Summarize the excerpt in your own words, quoting no more than a sentence verbatim. And use quotations marks for that sentence. Don’t forget to cite the source you’re summarizing.
  • If you plan to videotape or photograph people, places, and things for your print or e-book, you need to prepare a “Permission Grant” template that you can adapt for a specific use. Include the language, “I __(name)__________ grant (your name) permission to use my image (storefront, music, etc.) in his/her work, titled ___________. Describe in detail how you intend to use the image. This will give you credibility. Have spaces for you and the other party to sign it. Provide a signed copy for each of you. Whenever possible, get permission first. IMPORTANT: Look at your photo or video immediately after snapping/recording it to see if there is anything in the frame you didn’t notice beforehand; then try to get after-the-fact permissions. If you can’t, you cannot use the photo/video.

Okay, your turn. Share your own experiences with permissions. As noted, there are gray areas; your experiences are a great way for us to learn. If you have lingering questions, bring them up for discussion.

 

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32 Responses

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  1. Anne Love says:

    This is great Mary. I’ve been working on learning more about this since I linked Pinterest to my blog. Check out my blogpost “This I Believe…”

    I’ve decided to ask permission of photographers before pinning their work. Most I’ve emailed are happy to allow it for personal interest, research, and nonprofit use.

    I’ve also read all the Terms of Use for popular websites I like to pin from and decided some are more user friendly than others.

    Thanks for the post today.

  2. Hi Mary. This is an area where I always feel like I am walking a thin line. Fair Use comes into play for me most often in my “day job.” I am a teacher. When I am looking for reading material for my students to analyze or something to supplement my teaching, I frequently consult the Fair Use guidelines to make sure that I am not infringing on copyright. This is more for my own ethics than any concern about getting in trouble. Ironically, I did get into trouble with a boss a few years ago. I was the director of a religious ed program and I had made a copy of a mandala for students to color and pray with. Fair Use says that teachers may make one class copy of materials one time for educational purposes. This is exactly what I did. However, my pastor had a fit and told me that I couldn’t use the material because I had stolen it. I tried to refer him to the Fair Use guidelines, but he was adamant. So I had to improvise a different activity.

    Recently, I had a different experience. I write a blog on banshees, fantasy, and “things that touch my Celtic soul.” Currently I am reading a wonderful book on Celtic spirituality. I wanted to put a brief thought from it on the blog, but I checked the front of the book and (as is typical) it said that no part of the book could be reproduced or used without permission. I had thought that I should be able to have a brief quote from the book as long as I cited the source, but that notice stopped me. I don’t make money from my blog and I think that quoting the book could only help market it, but I feel confused about what is and is not acceptable, even though the Fair Use guidelines seem quite clear.

    • Blogging is what came to mind for me, too, Christine. I try to find stock photos that I pay for in some instances, but I promote authors all the time at my blogs–with or without their knowledge. If I get a book for review, the publisher expects me to post a photo of the cover art, but what about books i read and review where no one has granted me permission? Blog posts without photos would look horrible, but the sheer amount of books I read makes it almost impossible to ask for permission all the time.

      • Mary Keeley says:

        Using book covers on your blog for your reviews falls within Fair Use as “acceptable uses”, Cheryl. And it is free promotion of the book.

      • Thank you for responding, Cheryl.

        It sounds like you have a daunting task!

        I’m glad that Mary was able to clarify Fair Use in regards to the book covers.

        Have a great weekend!

      • Cheryl,
        This is not on topic, but I wanted to let you know that I just read about a book blogger contest. The contest is being held by Goodreads. You can go to http://www.goodreads.com to check it out or I can send the information to you if you’d like.

        By the way, I looked at your website. Great work!

    • Mary Keeley says:

      Thanks for sharing your experiences, Christine. Your pastor was misinformed. Perhaps he had a bad experience of improper use in the past or knew someone who did.

      Sometimes global statements like the one you mention are placed in books simply to discourage real infringement. You certainly would be within Fair Use boundaries to include a short quote if you include a credit. However, the safest thing to do in this instance is to contact the publisher’s permissions department to get approval.

  3. Hmmm, great information. I read recently on another blog that quoting 1-2 lines from a song is NOT considered fair use, since songs are so short that even 1-2 lines could be a significant percentage of the song. I guess there are differing opinions out there.

    When writing a novel, is it a bad idea to use bits of songs in the story? My next WIP is about a girl in a singing competition, so I’m very curious about this. I wouldn’t want to write it with some song quotes and then have to take them out or whatever if it ever goes to publication.

    Thanks for your advice!

  4. Mary Keeley says:

    Lindsay, you’re right. There are varying opinions. Section 107 of the Fair Use guidelines even states that “the boundary between fair use and infringement is unclear.” I reported from those I researched, but obviously there are differing interpretations of the unclear boundaries. This is why Fair Use and permissions can be confusing. A reasonable guide to go by in each individual case is to determine the actual percentage of the excerpt you want to use compared to the word count of the entire book, article, column, song. Simply estimate the total word count by counting the number of words on an average page and multiplying by number of pages of text. (There isn’t a standard “words per page” guideline to use anymore because page design varies so much.) If your excerpt is more than half a percent of the whole, you should probably request permission.

  5. Lori says:

    I am on the opposite end from what you are talking about.

    A former spiritual director I know wrote about me without my permission and it was published in a scholarly journal. This spiritual director is currently in search of an agent and publisher for her book of essays. She came close with one publisher but I had a talk with that publisher and the book did not move forward. I also had to get a lawyer to write a cease and desist letter to her. I also had a talk with the publisher of the scholarly journal and they are changing their policy of permissions before publishing any articles where private information was shared.

    I paid for her time, therefore I feel what I shared with her belongs to me and should not be used without my written consent either as directly, indirectly, or as a composite.

    • Mary Keeley says:

      Lori, I don’t quite understand the circumstances of your original interaction with the spiritual director in which you paid for her time. But in any case, you were wise to talk to the publisher who was close to contracting her. They obviously could see potential for violation of author warranties and indemnities.

      Thanks for sharing your experience from the other side. Your example of taking proactive steps is good to keep in mind.

  6. Lori says:

    I was a client. My interaction was dealing with her concentrated on my relationship with God and the grief I was going through when my father was on life support for a period of time and then after he died.

  7. Ann Bracken says:

    In my day job we quite often cite other research to support our own, or in lieu of doing it ourselves (why prove the wheel is round again?). Even if it’s something as small as stating the excitation wavelength of a drug we give full citation. We are not required to get permission, however, since we fall under research.

    The nice thing about writing historical fiction is that the copyright on most things I refrence is expired. I still make sure the reference is clear, though, and keep track of any websites, books or articles I include in researching my book. If I ever get published I want to be sure to give some hard-working bloggers on history the credit they deserve.

    • Mary Keeley says:

      Interesting information about permissions in your employer’s field of business. Sounds like that industry has established a sensible standard that citations are adequate. I suppose if those research companies had to request permission for every little thing, you would spend half your work time on it.

      You bring up a nice benefit of writing historical fiction: much of the material is public domain. Thanks for sharing your practice of tracking the bloggers you reference. You’ll make them happy and potentially willing to plug your book in return.

  8. I always wondered how they go about adding excerpts of novels in writing books. Good info! Thank you. And thank you for the chance to win A Kindle Fire.

  9. Mary, this is valuable information to me. I’ve asked about using a line of lyrics on my blog in writer’s loops and have always gotten quick “Don’t Do It!” replies. My completed manuscript has a hero who is a rock musician who comes to Christ, in part, through music. Not only did I want to print lines of Christian songs, but I wanted to do Christian music devotionals on my blog to keep in that theme. I have since changed the manuscript, taking quoted lyrics out. On the blog, I link to songs before the devotional, but the impact is much less than it could be. I always found it funny I couldn’t use them, when they are available all over the net, including the full song on their websites. I had planned on providing links, so it would definitely bring more exposure to the music. However, I do understand the right to display, or not display, their own work should be theirs. I often wonder if they wished we would be more free to share them in order to promote their ministry. I also wonder, if there is a way to work out an on-going mutual relationship between an author (or publisher) and a Christian record label, that would include usage agreements and cross-promotion of work. Just my brain on overdrive again. Thanks for this post!!!

    • Mary Keeley says:

      Connie, that’s an interesting concept: “work out an on-going mutual relationship between an author (or publisher) and a Christian record label.” It would probably require that an industry standard be established. My impression is that the music industry is tougher about Fair Use because the word count is so much shorter and the line crossing over to infringement is more easily crossed. Thanks for sharing those dynamics.

  10. Kate says:

    I appreciate your clarifying a confusing topic. And as you mentioned, Mary, in your comment to Lindsay, “there are differing interpretations of the unclear boundaries.”

    Do you think this is more of a non-fiction problem? One area I’ve wondered about in writing fiction is the use of brand name products….do you have to get permission to include these in your story?

    A pastor friend of ours once wanted to use a story my husband had told at a Christian Business Conference in his book. He acknowledged he would paraphrase it, but still ask us to sign a permission letter. We were honored he would ask to use it.

    Have a blessed weekend!

    • Mary Keeley says:

      Kate, these issues may occur more often with non-fiction but not exclusively. With the videos and background music capabilities in the near future, permissions will upfront in any writer’s mind.

      Your pastor friend provides a good example to follow.

  11. I’ve quoted a few of Churchill’s speeches in the mg hf novel I am writing. I’ve only used a very small amount of his words. I hope that I am not breaking any copyright laws.

    PS: Super giveaway! You’ve been coming to my mailbox for several years now. 🙂

  12. Mary Keeley says:

    Sharon, Churchill’s speeches might be public domain by now. If not, be sure you cite the source you extracted them from. If your source printed his speeches “by permission,” you should seek permission from the original source.

    • Thanks, Mary! I am keeping track of where I find everything. The BBC website is an amazing source. I think they would be considered a primary source since the BBC is who aired the speeches originally. (I hope I am correct on that.) I also have notes and letters from relatives who lived through that time period.

  13. Sarah Sundin says:

    Thanks for posting about this, Mary! The topic comes up frequently. I quoted song lyrics in my first two novels – the shortest was a seven-word snippet – and I had to obtain (and pay for) permissions to use those lyrics. The process is long and complicated, and has to be repeated for print runs in excess of the original agreement. Also the lyrics became an issue when rights were negotiated for book club, large-print, and foreign-language editions. My publisher chose to edit out the lyrics for those editions. Moral of the story: I will NEVER use song lyrics that are not in the public domain in a novel again.

  14. Brent says:

    Thank you, Mary, for posting such useful information.

    What if I wanted to use a popular fiction character – such as Katniss from the Hunger Games – to demonstrate unrelated concepts in a non-fiction book?

    Say I’m writing a non-fiction book on survival techniques and I want to use the characters and events of the Hunger Games novels as demonstrations of those techniques? A typical chapter might be something like: Remember the time Katniss did X? Well, this is how you can do that in real life…

    I wouldn’t need to excerpt any direct quotes from the novels, though I would reference the characters and events indirectly.

    Thanks again!

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  16. Peter Turchi says:

    I’ve written an essay that includes a discussion of The Great Gatsby. The essay includes a total of 1200 words from the novel; the longest quotation is a single paragraph. Most of the quotations are sentences or phrases. The essay will be included in a book published by a university press. The rights holder to Gatsby is requiring a prohibitive fee. My question is whether this sort and degree of quotation falls under fair use, an if it’s true that simply by asking for permission the press has agreed that the quoting does not fall under fair use.

  17. Kim Fletter says:

    I have written a memoir about my love, life, trial with my husband’s cancer, and death. It’s filled with adventures, triumphs, anecdotes, health and medical information, wisdom for life and for facing the inevitable. I am a new writer and have been learning a lot – permissions, how to cite, etc.

    I went through 6 emails to try to get permission for one stanza of a very popular Christian song. I was told I would need a separate permission for each of the two artists. One of the artists wanted to charge me $2,700.00., plus royalties. I thankfully declined. I was ignorant of the law, thinking I was doing the group a favor by giving them credit since I was writing about their song in my storyline. Boy was I ignorant!

    Since my manuscript is ready, I have hired a self-publisher. My question is: should my publisher alert me to any possible copyright infringement when I submit to them for my two page Manuscript Diagnostic Review, or do I hire an attorney? There is so much to know!!! Thank you!