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?
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Very good to review, Mary. Thank you. Most of this is not new to me. I’ve tried to read terms of use for things I pin to Pinterest for example, and for photos I post to the blog wherever available. Often the fine print is hard to read and interpret, or the copyright unavailable if not embedded into a photo. I’ve found Wikimedia very easy to use with good comments at the bottom of the page for copyright uses. And freedigitalphotos.net is good also, as long as you source them under the photo.
One question I do have is about concepts.
I recently rephrased/paraphrased a one line concept in my current WIP. The WIP is historical romance, but the source wasn’t published at the time the WIP is set, so I didn’t feel it was right to quote it. The source is from 1900 and the WIP is 1894. My memory is that you can freely paraphrase a concept if is a very small portion of your work. In other words, your entire profit and benefit from borrowing the concept doesn’t depend on the other person’s work/concept. Since I only used one sentence and it wasn’t a direct quote, I didn’t get permission. Can you comment on this?
That’s one of those gray areas, Anne. There’s potential that the copyright holder of the source you used could claim you wrongly paraphrased, thereby distorting the meaning or intent of his or her work. It’s always best to be safe than sorry. Since we don’t have time here to get into the details of what it is you paraphrased, I’ll give you a general response. If you don’t get permission for your exact paraphrase, at least give attribution in an endnote or in the Acknowledgments where you quote his or her sentence and then how you paraphrase it in your own book.
Great, thanks Mary.
Just an afterthought: how does one obtain permission from dead authors? Does copyright expire after 70 years or something?
Great info! Thanks for sharing.
You’re welcome, Andrew.
Than you, Mary, for this excellent information.
I teach writing in college, which includes teaching a section on plagiarism and how not to commit unintentional plagiarism. Many of my students roll their eyes at the information and my statement that plagiarism is serious. They think I’m just saying this because I’m an English teacher. Most wake up when they receive an F on their papers because they haven’t properly cited their sources.
I have two stories about plagiarism and copyright infringement. While neither story is about an author getting in trouble, both illustrate your point that you shouldn’t think “it [won’t] happen to you.”
The first story is about a man who was in a master’s program at a moderately well-known university. He had been asked to speak at his graduation ceremony. The man took a passage from a book and used it in his speech without permission from the publisher AND without giving credit to the author in his speech. The book happened to have been written by one of the university’s professors. The man was not allowed to graduate, did not receive his master’s degree, and discovered that no other university in the US would accept him into another master’s program.
The second story is about a Sunday School teacher. She copied a picture from a book. It was a mandala that she wanted the students to color in connection with prayer. The pastor heard about this prior to her class meeting. Her called her into his office, gave her a lecture on copyright infringement, integrity, and honesty. As she was a paid staff member as well as a teacher, he informed her that he would let her know the next day whether or not she would keep her job. He felt her “dishonesty” and “theft” were unacceptable for a member of his parish. I was the Director of Religious Education at this parish and he met with me about the issue. You mentioned the Fair Use Doctrine above. She felt that she had been operating within the parameters of the doctrine. The pastor had never heard of it. He felt that copying a page from a book was wrong period. From what I knew of the doctrine (as a teacher, I have had to consult it numerous times before using a resource), I thought she actually may not have done anything wrong. I re-read the act carefully and, while there are gray areas, the doctrine does say that a teacher may make one class copy of a part of a book as a spontaneous act (i.e. the teacher hasn’t been planning all year long to use the material). I gave the pastor a hard copy of doctrine, highlighting the information I just paraphrased. He did not fire the staff member / teacher. However, he forbade her to use the picture as he wanted to be sure the parish would not be sued. The teacher had to scramble to come up with a new lesson plan. All of this took place in a very hectic morning. Thank heaven for the internet which gave me quick access to the Fair Use Doctrine.
Now, to tell on myself. Your post has gotten me thinking about two things that are a part of my WIP. One is that I mention that Harry Potter and Star Wars are on a bookshelf. I don’t use any material from either series, but I hadn’t thought about the titles being trademarks or that I might need permission to use them. That one is easy as I can just eliminate the sentence. The other one concerns me more. One of the characters is an herbalist, so I have done considerable research on herbs, their medicinal uses, and the folklore attached to them. I haven’t quoted a source, but I have used the information in three ways. First, in sentences such as “She massage lavender oil into Mrs. Scroggs arthritic knees.” Secondly, as symbolism and foreshadowing. For example, I have a scene where my teen protagonist is about to become romantically involved with a boy. The boy brushes apple blossoms off a bench, so that she can sit down. Shortly thereafter, she spots some heather down the hill from where the couple are sitting. Thirdly, I use plants and herbs in descriptions, such as “Her voice was as attractive and a deadly as nightshade,” and “A girl with hair the pale yellow of fennel blossoms sat….” I don’t think any of this is copyright infringement or plagiarism, but if I’m wrong, please let me know. After reading the post, I’m feeling a bit hyper-vigilant.
Many blessings!
I don’t think the herbal references are copyright infringement. If the information can be obtained from multiple sources, you’re safe (as long as you’re not quoting directions for their use from a published and copyrighted source).
Titles can’t be copyrighted, so you can keep Harry Potter and Star Wars on the shelves. They can be trademarked, but that’s a different thing – it means you can’t market your work under a “Harry Potter” banner.
Thanks, Andrew! The use of herbal information is from numerous sources and I only used the ways in which an herb is used (as a fever reducer, an anticoagulant, an analgesic, etc.), never specific directions regarding doses or preparations, except to say that she made lavender tea or put rosemary in the bathwater.
I knew that titles couldn’t be copyrighted, but I wasn’t sure with Potter and Star Wars because they are now brands. Thanks for the clarification.
Blessings!
You are free to leave that sentence in your book, Christine. Titles can’t be copyrighted because the Copyright Office doesn’t consider them to be intellectual property.
Your use of herbs as descriptions isn’t infringement. It comes from educational information. You aren’t quoting another person’s words.
Thank you so much, Mary. Your guidance is reassuring.
You might want to put on your copyright page that Star Wars and Harry Potter are registered trademark of their appropriate holding companies, just to ‘check that box’, but they are part of our culture, and references thereto are, in fact, cultural references.
Great suggestion. Thanks. 🙂
I interviewed an actor last year for my blog, and gave him editorial approval on the content of the blog post. He didn’t change anything, but he expected to be able to do so should he have objected to any of the content. I used his image, with his approval, on my one sheet at ACFW last September. I had to give him photo credit for the use of his image, and he was very specific about the font size on the credit. Which, considering his image is his livelihood, I was more than happy to oblige.
I’m very careful to give credit for any photos I use on my blog, and I tend not to quote living, public figures, because of the potential hassle involved.
A misprint, or a misquote, can ripple out, or it can ripple in, kind of like a tidal bore…and suck your career down into oblivion.
Smart procedure, Jennifer. It sounds like you are always sensitive to these issues.
Thank you, I try to be.
And, some people have sort of shorter fuses than others. 😀
So I tread lightly wherever possible.
Yup, that’s me, Little Miss Twinkle Toes.
This is a very useful topic, and I’m glad you shared it. I did learn some things.
Those who have not been through a lawsuit generally don’t know how unpleasant it is. If you are either the plaintiff or the defendant, the opposing lawyer will do everything possible not only to prove the case, but to attack your character.
If they can make the jury hate you, they’re a long way toward a successful win (or defense).
And everything in your life will be open to scrutiny – friends, financial records, Facebook, Twitter, Pinterest, and relevant emails.
I went through this recently in a discrimination lawsuit against my former employer. It was settled before going to trial, and I’m grateful for that. I can tolerate a lot of abuse, but this process was horrible.
In the end, only the lawyers really win.
I haven’t been sued, thank God, but I have been on juries and jury panel. I’ve seen the attempted character assassination first hand. It is horrible. I also have been subjected to abuse as a potential juror. On one panel, the prosecuting attorney in a criminal case belittled and demeaned me. My most recent experience, which was this past July, a lawyer in a civil suit gave me a hard time because I answered “I don’t know” (rather than yes or no) to a question. He accused me of hedging. I told him that I was being scrupulously honest in saying, “I don’t know,” and that I couldn’t say for sure how I would feel or react in regards to that specific question until I heard all the evidence for the trial. The judge then told the jury to take a break, but instructed me to wait outside the courtroom, that I was going to be called back in. When they called me back in, both the lawyer and the judge interrogated me, trying to get me to own up to feeling one way or the other. I felt very much like I was the one on trial and I finally told the judge that. The session ended when I told the judge and lawyer that, by that point, I could no longer be an impartial juror. As a result of the treatment, I knew that now had a bias against that lawyer, and consequently, against his client. I had to sit through the rest of the panel selection, but did not get put on the jury. Thankfully.
I, too, have sat on juries for both criminal and civil trials, and I definitely feel your pain. I always do my duty when called for jury service, but my experiences have left me less than enthusiastic about our justice system.
In dealing with my book, I had to get permission from my cousin to use a poem she had written for me. I was glad to do it. One song that wasn’t public domain, I gave credit and only used five lines. Public domain, I still just used about five lines … just enough to make my point.
Shelli, you put the “better safe than sorry” approach to good use. Wise move.
One thing I think many people don’t realize is that most Bibles are copyrighted. I hadn’t thought of it, but in checking…yeah, they are.
If you quote the KJV you’re safe, but anything recent, you’d best get permission.
Thanks for this post, Mary. I try to be very careful about pictures and words I use from others.
I hadn’t thought about a release form for those I interview. Would this apply even if I’m interviewing someone to better understand my characters—line of work, etc?
So glad you posted this, Mary!
Jeanne, you need a release when you are going to publish an interviewee’s words because the words are directly connected to the interviewee’s name. Interviewing someone for your stated purpose here doesn’t directly connect the interviewee to your character’s words or likeness.
Thank you. That’s a relief to know. 🙂
In my book Documenting America, I quoted a number of historical U.S. documents, all in the public domain. I got the text of a number of these from The Annals of America, which is a twenty volume set from Encyclopedia Britannica. Each volume has a copyright notice in it. Now, I didn’t see how they could claim copyright over public domain documents they republished, but they did have added comments (which I wasn’t quoting) strewn throughout. Just to be sure, I sent a letter, explaining what I was doing, giving them a couple of examples, and asking if I needed their permission. They wrote back and said yes, and they gave permission for me to use that material, and that they waived their normal $75 fee for responding to such a request.
It’s wonderful that they waived their fee! It pays to be upfront with people.
Well done, David. Authors help themselves by being honest and upfront, showing they are endeavoring to do the right thing. Infringement is on the rise due in part, I believe, to the sense that everything on the Internet is free to use. Copyright holders and publishers appreciate an honest approach like yours, and your experience is an example of how that approach is often rewarded.
Yes, but if they had said in that letter “Please remit $75.00”, you wouldn’t have wanted to hear what my response would have been. I think it’s outrageous that anyone can attempt to claim copyright over public domain works just because they put them in a modern package and re-publish them. And then charge you for asking about it!
Do you have any suggestions for looking at release forms for interviews? Considering starting an interview series and I’d like to know what they entail.
Heather, there is a good template in the book I recommended. You’ll see all the information you need to provide and request and also a sample of the kind of language to use.
Permissions, Releases, and Copyright…Oh My! is a good title for today’s blog. Most of this is not new to me. I’ve either experienced or read about these things.
As for experience, I had an author of a journal article quote me without my permission or my relase. This same article was being incorporated into a book which publishing house decided not to go through with publishing once I talked to them. The journal’s publishing house apologized and established new procedures after I talked with them.
As for my copyright for a different project I’ve been involved with, I am still waiting for my copyright certificate before I can act legally on it. I would like to handle this outside of lawyers but somehow I do not see this happening.
The author of that article learned a hard lesson. Even if the author was ignorant to copyright laws, that is no excuse. Authors are expected to be professionals.
I know, receiving copyright certificates can take f-o-r-e-v-e-r. Ugh.
Can we also obtain the document a person would sign to give permission to use their written work at http://www.copyright.gov?
I used stand alone quotations for almost all of the devotions in The God of All Comfort.
I sought permission for each of the quotes. My advice is start gathering permissions early–as soon as you have your book contract. In many cases the copyright had reverted back to the author. For a couple of the quotations I needed to contact relatives because the author had died.
My favorite example of the importance of doing due diligence with permissions came with the last permission that came in. I’d spent nine months pursuing permission to use a quote from one of Chuck Swindoll’s booklets.
Along with the release form granting me permission to use the quote, I received the following note that included, in part:
“Thank you for your interest in using our works in your project and for your integrity in requesting permission. I appreciate your attention these important details.”
Cynthia Swindoll
(Chuck Swindoll’s wife)
Judy, your experience says it all. Thanks so much for sharing.
Excellent advice. Very neatly laid out. Thanks much. Will share!
Thanks, Anne.
What about use of quotations? Say each chapter had a quote from Churchill or C.S. Lewis at the beginning–do those need to have permission if it’s attributed to the famous person?
If you use a one- or two-sentence quote from different people each time, you don’t need to request permission. But if you use repeated quotes from the same person, that adds up. To be safe you should definitely seek permission. I’ve heard that C.S. Lewis’s foundation would like to claim an author needs to request permission for any size C.S. Lewis quote. Better to be safe than sorry. Or, use a quote from a different person each time.
Christina, it sounds like you’re using stand alone quotes like I did, rather than included in the general text.
My understanding (from researching the copyright/permission issue for my book)is that it is especially important to get permission for stand alone quotes. These aren’t the same as quoting within the text of a book.
However, it’s been a few years and rules may have changed.
In my book I have a stand alone quote from C.S. Lewis’ book The Problem of Pain. I got permission from C.S. Lewis Pte.Ltd.
Christina, if you have questions about how I gathered permissions or anything about this, you know where to find me. 🙂
I once edited a book in which an author repeatedly copied sections of work he had previously written and published. What a headache both for me, the editor having to check each instance after discovering what he had done, and for the publisher, whose schedule was thrown (not a small thing) by having to go back to him for many redos.
Of course, they could have had him try to get permission from the former publisher for all that work, but they contracted this book with him in the understanding that it would be a new work.
This crosses my mind every time I think about posting on my Website a devotion I’ve written and had published. Even though it’s my own work, I need to go back to my publisher and request permission to use it again.
Very good point, Erin. Thanks so much for sharing.
Why do you need permission from your publisher to quote from your works? Aren’t you the copyright holder? My publisher(s) filed the paperwork, but it’s my name after the copyright symbol.
Thanks for posting this! I try to be very careful about the stuff I use, especially on my blog. Good info.
Several comments on this excellent subject. 1) The “fair use” doesn’t apply to music. You can’t use more than one line without permission and, in some cases, the cost would be more than it’s worth. You can, however, paraphrase it (still giving the title and composer) or use only the title. 2) All but the KJV of the Bible are copyrighted, but in most you can use anywhere from 200-500 verses without permission, but you have to give a credit line. (I have a list of the number of words allowed and the credit lines if anyone wants to email me at: dgood648@aol.com 3) You don’t have to have permission to quote from a government publication, but you have to give a credit line. I quoted from a book on preparing taxes and was charged $250. Later I found that same information in a government booklet, so I wrote the publisher of the first book, saying that I thought the charge was exhorbitant since they got it free. They lowered the cost to $75 (which my publisher paid). 4) I have a great form that John Wiley & Sons sent me to keep track of permissions: by number, page number, name and address, when requested, when received, cost and when paid, or complimentary copies sent.
Mary, thank you for this informative post. I’ll be more aware of what needs permission when I write.
I emailed Donna after her offer. She shared good information on the number of verses Bible publishers allow a writer to use. Additionally, she lists fifteen suggestions for using Bible scripture, such as how to avoid confusion when using verses and how to use correct punctuation.
I appreciate the helpful advice. Thank you for sharing!
Though readers of this blog know better, one thing I keep running into is the notion that anything found on the internet is “Free” and can be used willy-nilly. I’ve gotten into several discussions on this topic (some of them you might call heated). Some people don’t want to be told that what they’re doing is wrong.
For the record, most (but not all) of the internet-is-free thinkers I’ve spoken with are college age or younger. I don’t know if this is cultural or a missing link in their education.
My dog is a qualified canine attorney and would be glad, (not sad or mad) to answer any and all of your questions regarding this delicate subject matter.
This is a free service but “dog bones, kibble & snacks” are accepted as a gratuity.
Disclaimer: Virtual “dog bones, kibble & snacks” will not be accepted.
Years ago I interviewed some people and got oral permission on the recordings to use the information. It wasn’t published and I’m thinking of using some of the material for a new project. However I’ve lost contact with some of the people and others have died. If I were to use pseudonyms for the people and change some of the information to hide their identities would it be legal to use that material?
Great article, thank you. This may have been previously covered. What about using or referring to words or phrases uttered by a well-known comedian or television personality, or public figure? If you use the same word/phrase that they are known for using or saying, would this be an infringement? For example British comedian Catherine Tate has a character that she plays who often says “Am I bothered?”, could that phrase be used without infringement?
Also what about trademarked sayings like Nike’s, “Just Do It”, for example. Can a saying like this be used or referred to without infringement?