the interview subject may have placed
restrictions on the use of interview material. Letters
In other situations, the interview subject
may seek to prevent republication of the
The writer of a letter is usual y the owner of
interview, claiming copyright ownership
the copyright in the letter. However, there are
of his or her responses. A publication may
two exceptions to this rule: Letters written by
write to you stating the following: “We are
employees within the course of employment
unable to grant your request because our
are owned by the employer, and letters written
publication holds no rights to the reuse of
by federal employees within the course of
this material. Quotations that appear within employment are in the public domain.
the text remain proprietary to the speaker.”
Don’t assume that the recipient of
Unfortunately, sometimes a publication
the letter owns the rights you need. The
will provide you the interview text even if
recipient owns only the physical letter itself.
they don’t own the rights to it. If you reprint For example, the owner of a letter written the text, the interview subject could sue you
by Elvis Presley could sell the physical letter
for unauthorized reproduction of his or her
itself, but only the Estate of Elvis Presley
remarks. To deal with this possibility, when
could grant rights to reproduce the text of
seeking permission to reprint an interview,
the letter. And don’t assume you can use
ask if there is a written consent by the
an unpublished letter, no matter how old,
interview subject on file and, if so, ask for a
without permission. Review the section
copy. If there is no release, ask if the rights
below, on unpublished works, first.
holder is wil ing to sign a written assurance
that it has the authority to grant the rights
Speeches
you need. Such a document should state:
“Licensor warrants that it has the right
Not all speeches are protected by copyright.
to grant permission.” This will not shield
Copyright law protects a speech only if it
you from liability as effectively as a signed
is written down or recorded (“fixed”) and
release from the interview subject, but it
if the writing or recording was done with
does provide you with some legal protection. the speechwriter’s permission. If a speaker If the interview subject later files a lawsuit,
improvises a speech and his or her words
you will have a stronger case against the
are not written down or recorded with
licensor (the rights holder) for breach of the
his or her authority, the speech has no
written assurance it gave you. If you are stil
copyright protection. Both criteria, fixation
(recording) and authorization, are necessary.
372 | THE COPYRIGHT HANDBOOK
If the text of a speech is not fixed with the
the speech has been published, because works
authorization of the speaker, you are free to that have not been published enjoy longer
use it without violating copyright law.
periods of copyright protection. Giving a
speech or lecture in public does not amount
to “publication.” Legal y, publication occurs
The Right to Use Monica’s Words
only when copies of the speech or lecture are
distributed to the public.
Monica Lewinsky’s infamous telephone
conversations with confidante Linda
This rule was fortified in a case involving
Tripp about President Clinton are not
Martin Luther King, Jr.’s, “I Have a Dream”
protected under copyright law, because
speech. A federal court of appeals ruled
they were recorded by Tripp without
that Reverend King’s 1963 performance
Lewinsky’s authorization. On that basis,
of the speech to 200,000 people (and
Lewinsky has no claim against Tripp or
simultaneous broadcast over radio and
any of the companies that have published
television) did not amount to publication of
the conversations. It’s possible that her
the speech. ( Estate of King v. CBS, Inc. , 194
statements may be protected under
F.3d 1211 (11th Cir. 1999).)
principles known as “state common law”
copyright, but, as a practical matter, it’s
Who owns the copyright?
difficult to enforce such claims.
If a speech is written down before it’s given,
This does not mean that you can
the author usual y owns the copyright
lure an interview subject into a phone
(assuming the author also delivered the
interview, tape it, and use it without the
speech—see below for rules on ghostwriters).
subject’s authorization. Some states,
However, if the speech was written as part
including California, have laws prohibiting
of an employment obligation—for example,
the recording of telephone conversations
a speech written by the president of Apple
without the consent of both parties. In
Computer for a shareholders’ meeting—the
addition, publication of such conversations
may trigger claims of invasion of privacy.
author’s employer owns the speech. If the
speech was written by a federal government
employee as part of his or her employment—
for example, a speech by the Secretary of
Determining whether a speech
the Treasury to Wall Street investors—it
has been published
is in the public domain. If the speech was
ghostwritten—written by someone other
If a speech is protected by copyright, it is
than the speaker—the ghostwriter owns
important to determine whether the text of
the rights, unless the ghostwriter was the
CHAPTER 14 | OBTAINING COPYRIGHT PERMISSIONS | 373
Titles and Short Phrases May Be
speaker’s employee or transferred the rights
Protected Under Trademark Law
to the speaker (or someone else) under a
written agreement.
Titles and short phrases are not protected
If the speech was given extemporaneously
under copyright law. Despite their public
(improvised, not written down in advance)
domain status, names, titles, and short
but recorded with the speaker’s permission,
phrases may be protected under trademark
the author/speaker usually owns the
laws. A trademark is any word, photograph,
copyright in the speech itself, the same
or symbol that is used to identify specific
way as if it was written down (as described
products or services.
above). But, the recording of the speech
Permission is not required to use a
belongs to the people who recorded it—
trademark in any of the fol owing cases:
for example, a TV s
tation news crew or a
• Your use is for informational or
newspaper reporter. A video, film, or sound
editorial purposes—for instance,
recording of a speech is a copyrighted
you use the trademark as part of an
article or story.
work in its own right, owned by the person
• Your use is part of accurate
who made the work. However, a verbatim
comparative product statements.
written transcription of the speech—made,
You do need to obtain permission in
for example, by a newspaper reporter at the
these cases:
scene—is not separately copyrightable, since
• Your use is commercial and likely to
the author/speaker owns the speech (but not
create confusion among consumers.
the recording of it).
• Your use is commercial and reflects
If the speech was recorded, to use the
poorly on or “tarnishes” the trademark.
recorded copy of the speech, you’ll need to
• You modify the trademark.
obtain permission from both the author/
Take, for example, the slogan “Just Do
speaker and the recorder of the speech. The
It.” Because the phrase does not qualify
same rule holds true whenever you want to
for copyright protection, you can use it
use a sound recording, film, or video of a
in a song lyric, movie, or book. However,
speech, instead of the written text.
because Nike has a trademark for the
If you cannot locate the speaker, contact
phrase, you cannot use it in a manner that
the organization that sponsored the event.
is likely to confuse consumers into thinking
Often you can find the full text of a speech
that you are associated with Nike or that
reprinted on the Internet, so a search engine
tarnishes Nike’s reputation.
may help you locate the rights holder.
374 | THE COPYRIGHT HANDBOOK
Orphan Works
Out-of-Print Works
Just because a book or magazine is out of
One problem that constantly bedevils
print does not mean that its copyright has
people who want to obtain permission
run out. Your use, without permission, may
to use copyrighted works is when the
still amount to an infringement. Therefore,
copyright owner cannot be identified or
if you intend to use text from an out-of-
located. This is particularly common for
older works with little economic value.
print publication, start by contacting the
Such works are often called “orphan
publisher. A good way to find the name of
works.” The Copyright Office completed
the publisher is through online bookstores,
two studies of the problem in 2006 and
such as Amazon and Barnes & Noble,
2015 and issued two reports (“Report on
which have extensive listings of out-of-print
Orphan Works” (2006), “Orphan Works
books and publishers.
and Mass Digitization: A Report of the
Locating the copyright owner of out-
Register of Copyrights” (2015), available at
of-print works becomes more complicated
www.copyright.gov).
if the publisher no longer exists. Authors
The Copyright Office has recommended
often own the rights to their out-of-print
the enactment of legislation to protect
works because publishing contracts often
users of orphan works from copyright
return rights to the author if the publisher
infringement lawsuits. Under the proposal,
stops selling the book. If your search for
a person who uses an orphan work without
the publisher and author lead to dead ends,
permission would have to pay no more
you will have to perform more extensive
than “reasonable compensation” if the
copyright research or hire a copyright search
work’s owner later surfaces and complains,
firm to determine the current owner.
provided that such user (1) performed a
If you’re not sure whether a book is out of
good-faith search to identify and locate
print, try consulting Books in Print, published
the owner before the work was used, (2)
by R.R. Bowker. This massive online database
filed a Notice of Use with the Copyright
is searchable (for a hefty subscription fee) at
Office, (3) provided attribution to the
the R.R. Bowker website (www.bowker.com).
copyright owner, if reasonable under the
You may be able to access it for free through a
circumstances, and (4) included a (yet-to-
local or college library.
be-devised) orphan works symbol with any
distribution, display, or performance of the
work. To date, this proposed legislation has
Unpublished Text
not been enacted by Congress.
As with an out-of-print work, do not
assume that an unpublished work is free
CHAPTER 14 | OBTAINING COPYRIGHT PERMISSIONS | 375
to use. The rules regarding copyright
Using Text From Advertisements
protection for unpublished works depend
on if and when the author died and, in the
Text in advertisements is usually owned by
event the work was ultimately published,
the corporate sponsor of the ad. However,
the date of publication. (See Chapter 9 for a in some cases it may be owned by the
detailed discussion of copyright duration for advertising agency or publication that
unpublished works.)
prepared the ad. To locate an ad agency or
As you can imagine, it can be quite
corporate advertiser, try using an online
difficult to locate copyright owners for
search engine or The Standard Directory of
unpublished works, because there is no
Advertising Agencies (www.redbooks.com).
publisher to contact. Copyright Office
records may help, if the unpublished work
When You Can’t Find
was registered. Determining ownership for
the Rights Holder
unpublished works is especially difficult
if the author is deceased and the author’s
If you’ve used the techniques discussed in
estate or heirs are hard to track down. The
this chapter and cannot find the person
WATCH database (http://norman.hrc.
or business whose permission you need,
utexas.edu/watch) may help you track down you have a few options. You could try
the author of an unpublished work.
to delve deeper into copyright records at
the Copyright Office. These records may
help you determine who owns the work
ISBNs and ISSNs
currently, because many copyright transfers
are recorded with the Copyright Office.
ISBNs (International Standard Book Numbers)
The Copyright Office’s renewal records
and ISSNs (International Standard Serial
will reveal if the p
ublisher has failed to
Numbers) identify books and magazines
and are sometimes required when seeking
renew the copyright in the work—which
permission. ISBNs are used for books; ISSNs
puts the work in the public domain if it
are used for magazines, journals, newsletters,
was published between 1923 and 1964.
and other serial publications. These
Chapter 9 offers guidance on the three most
numbers can be found on or near the title
common methods of searching Copyright
or copyright page or near the publication’s
Office records: hiring a search firm, paying
UPC bar code. Since several numbers may
the Copyright Office to do the search for
be printed on the bar code, look for the
you, or searching the Copyright Office
number preceded by either “ISSN” or “ISBN.”
records using the Internet.
376 | THE COPYRIGHT HANDBOOK
If you still cannot locate the rights
Likelihood of Discovery
holder, it may be time to consider using
the material without permission. As you
The likelihood that the author or rights
might imagine, this poses risks. If the rights holder will discover your unauthorized use holder finds out about your use, you (or
depends on the extent of the distribution of
your publisher) may receive a letter from
your work and the popularity of the rights
the rights holder or an attorney demanding holder’s work. For example, if you use an
that you stop using the material (known as excerpt from an obscure writer’s work in
a cease and desist letter).
a book that sells under 2,000 copies, the
Before you use any material without per-
odds are in your favor that the writer will
mission, you should answer two questions:
not learn of your use. On the other hand, if
• How likely is it that the rights holder
you use a well-known quote from a famous
will see your work?
play in an article for a major magazine that
• What is your potential legal liability if sells millions of copies, your use has a much you are subject to a claim of copyright greater chance of being discovered. The
infringement?
more likely it is that the rights holder will
see your use of the copyrighted work, the
more caution you should take in proceeding
Giving Credit Where It Is Due
without the owner’s permission.
Your permission agreement wil detail your
Potential Liability
obligation to include a written credit for the
author or publisher. Make sure the credit
The Copyright Handbook Page 65