When using material without authorization,
is correct as required in your permission
there is always a risk and potential
agreement. This is a serious subject between
liability—meaning responsibility under the
you and the rights holder. Unless otherwise
law for which you may have to pay money
required under your permission agreement,
damages. The amount of risk depends on
you can group credits together on the
several factors, described below. Generally,
copyright page. For example:
if you can show that you made a good-faith
“Elvis’s Toothbrush” original y appeared
effort to search for the copyright owner, you
in Meet the Stars © 1985, by Missy Laws.
will probably only have to pay the rights
Reprinted by permission of Ross Books.
holder the standard fee within the trade for
“You Can Collect Toilet Paper” original y
a similar use. However, there are exceptions
appeared in Antique and Collecting
to this general rule. A disgruntled copyright
Magazine © 1990, by Harriet L. Rinker.
owner may refuse to grant permission and
Reprinted by permission of the author.
insist that you halt distribution of your
CHAPTER 14 | OBTAINING COPYRIGHT PERMISSIONS | 377
work. Alter natively, a copyright owner may
What Does “Publication” Mean?
demand an exorbitant payment and drag
you into court.
Publication occurs for copyright purposes
Consider the following risk factors when
when the copyright owner, or someone
proceeding without permission:
acting with the copyright owner’s
• The investment in the project using the
authority, distributes one or more copies
copyrighted work. The more money
of the work to the general public or offers
spent on your project, the greater
the work for distribution, public display, or
the risk in the event that you must
public performance. Copies do not need
halt publication. It may not be worth
to be sold for publication to occur—they
risking a $100,000 project for the sake
can be leased, rented, loaned, or even given
of using one unauthorized illustration.
away, so long as the work has been made
• The diligence of your copyright search.
available to the general public.
The more diligently you searched,
Publication does not occur when:
the less risk. A thorough search
• Copies of the work are made but not
demonstrates that you acted in good
distributed.
faith and may demonstrate that it’s not
• The text of the work is performed
possible to locate the copyright owner.
publicly (for example, a speech is
• The nature of your work and how easy
presented).
• The text of the work is displayed (for
it would be to remove the offending
example, in a slide presentation or on
portion. There is less risk involved
if it is easy for you to remove the
television).
A “limited publication” is also not
unauthorized material from your
considered a publication. A limited
work. For example, a photo posted on
publication occurs if copies are distributed
a website can be easily removed, while
only to:
one printed in a book cannot without
• a selected group of people
wasting any remaining inventory and
• for a limited purpose, and
reprinting the whole thing.
• without the right of further
• The nature of the copyrighted portion
reproduction, distribution, or sale.
and how easy it is to replace. Although
For example, it is not a publication when
not as important as the other factors,
an author sends copies of a manuscript to
your risk analysis should incorporate
several publishers seeking publication.
how hard it will be to replace the
material in the event that you must
remove it.
378 | THE COPYRIGHT HANDBOOK
EXAMPLE: Jim publishes a newsletter for
dollars. Even worse, a lawsuit based
seafood restaurants and wants to use material
on a non frivolous claim (one in which
from a cookbook entitled Steamed Eels,
there is a reasonable basis for the
published in 1977. Jim was unable to locate
claim) may proceed for years, and your
the publisher; his letters to the publisher were
attorneys’ fees can soar into the tens of
returned with a notice that the company had
thousands of dollars.
moved with no forwarding address. Jim later
• Halting distribution. If a copyright owner
learned from a distributor that the publisher
forces you to halt distribution, you face
had gone bankrupt in 1983. Jim paid the
losing the money spent on the printing
Copyright Office to perform a search, which
or distribution of the work, as wel
turned up only an address for the author, who
as the additional expenses to reprint
died in 1986. Jim wrote to the author’s last
and redistribute it. In addition, your
known address, but his letter was returned as
costs may include recovery of unsold
undeliverable. Jim searched on the Internet
copies from distributors, notification
for people with the same last name as the
to purchasers, and loss of revenue from
author and posted requests for information
advertisers. (See Chapter 11 for a detailed
at several cooking websites. Jim documented
discussion of copyright infringement.)
this search and then researched the standard
fee for a similar text license. Based on this,
Jim proceeded to use the material without
Negotiating Text
permission, citing Steamed Eels, and its author Permission and Fees
in his work. In the event that the copyright
owner turns up, Jim is prepared to pay a
Obtaining permission to use text involves a
reasonable fee for using the work. Jim’s risk
four-step process:
is relatively low because his search was very
• First, you must clearly and specifically
diligent and, given the obscurity and relatively
identify what material you want to use
low value of the work he’s copying, the
and how you want to use it.
financial risk for infringement is low.
• Next, you must send a permission
When weighing risk factors, consider
request letter to the publisher or rights
the expense and aggravation of the two
holder.
worst-case scenarios: litigation and halting
• Then you and the publisher or rights
distribution of your work:
holder must negotiate a permission fee,
>
• Litigation. Any “wronged” party can
if any.
file a lawsuit regardless of the merits
• Final y, you must get a signed permis-
of their claim. A frivolous lawsuit can
sion agreement. Your permission request
drag on for months, and the attorneys’
letter may do, or you may need to draft
fees can amount to several thousand
a separate permission agreement.
CHAPTER 14 | OBTAINING COPYRIGHT PERMISSIONS | 379
Make a Request to the Rights Holder
and anticipates that you and the rights
holder will later complete and sign a
After you identify the material and rights
separate permission agreement.
you need, you should send a letter to the
• The other type of request letter serves
rights holder requesting permission to use
as both a request and a simple permis-
the material. Your permission request letter
sion agreement for your use of the
should provide all of the details about the
material. The copyright owner reviews
text you want to use, how you expect to use
the request and gives you permission
it, and the permission you seek.
by signing and returning the letter.
This approach is recommended for
Keep Your Rights Request Simple
simple requests to reproduce text.
The second type of letter—that serves
Most text permission requests are for the
as both a request and an agreement—is
right to reproduce all or part of a work. For
discussed later in this chapter. This section
example, say you want to reproduce text in
looks at a basic permission request letter
your magazine or on your website. If that’s
that contemplates that the parties will
all you need, keep your rights request short
negotiate and sign a separate permission
and simple.
agreement letter. You’ll find a sample
EXAMPLE: Chris wants to reprint a
Permission Request Letter below.
newspaper column on his website.
Whichever type of request letter you use,
The request he sends is basical y as fol-
include a copy of the text that you wish to
lows: “I am creating a website for the
reproduce with your letter.
Association of Barking Dog Observers
(ABDO) and would like to post the
January 20, 2015, Dave Barry column at
FORM
our site for one month. I would like to
You can download this Copyright
know how much it would cost to post
Permission Request Letter (and al other forms
this column. Also, I would appreciate it
in this book) from this book’s companion page
if you could fax or email me a sample
on Nolo.com; see the appendix for the link.
permission agreement.”
Negotiate Permission Fees
There are two different types of request
letters you can use:
Next you’ll need to work out how much
• One type of request letter simply
you’ll have to pay for the rights you’ve
informs the rights holder of your needs requested. The publishing industry does
not have standard rates for using text. Some
380 | THE COPYRIGHT HANDBOOK
Copyright Permission Request Letter
Dear Ms. Hitchcock:
I am writing to you about your article, “Why I Hate Surround Sound.” New
Audio Magazine informed me that you were the owner of rights in the article.
I’m writing a book entitled DDA: Death to Digital Audio, and I’d like to use an
abridged version of your article in the book. The details are as fol ows:
Title of Your Article (the “Selection”): “Why I Hate Surround Sound”
Author: Michelle Hitchcock
Source of Article: New Audio Magazine
Volume, Issue, ISSN: Vol 23, No. 6, ISSN 1099-8722
Number of Pages: 4
My intended use of the Selection is as fol ows:
Title (the “Work”): DDA: Death to Digital Audio
Publisher: Cumberland Books
Type of Publication: Book (trade paperback)
Rights Needed: (1) the right to shorten or modify the Selection (I’ll
send you a copy of the abridged version for your approval); and (2) the
nonexclusive right to reproduce the Selection in all editions of the trade
paperback book, DDA: Death to Digital Audio.
Estimated First Print Run: 6,000
Expected Price: $12.95
Projected Published Date: January 20xx
I’m seeking these rights for myself and my publisher, Cumberland Books,
and for any company that might acquire my rights to the book in the future.
Please review this request and let me know the terms for licensing rights as
well as the required credit. Once you let me know, I can prepare a permission
agreement. Thank you very much.
Sincerely,
Roberta Weston
Roberta Weston
CHAPTER 14 | OBTAINING COPYRIGHT PERMISSIONS | 381
magazine and newspaper publishers use fixed example, a professor who sought to use four
rates for common permission situations and
lines from a poem by Emily Dickinson was
can furnish you with what is known as a rate quoted a fee of $200 by a university press.
card listing such fees. In other instances, the (Note: Because of copyright rules regarding owner won’t be able to assess the fee until
unpublished works, not all of Dickinson’s
after reviewing your request. Below, we’ve
work is in the public domain.)
summarized some fee information.
Using text on your website
Using text in a book
The fees for website uses are evolving—
The fees for using text in a book are com-
meaning nobody is quite sure how much to
monly affected by:
charge. The fees are affected by:
• the number of copies to be printed:
• the extent of advertising on the website
Pricing is often calculated at print runs
• whether the site is intended primarily
of 5,000, 10,000, and 100,000 copies.
to provide information to the public
• the price of the book
(sometimes referred to as an “editorial”
• territorial and language rights: World
purpose). The rights holder may want
rights may cost double or triple the cost
to know whether the purpose of the
of U.S. rights alone. A rights holder
site is to provide information or sell
may charge 25% more for permission
products or services.
to reprint in a second language.
• whether the organization sponsoring
• whether the use is for a nonprofit
the site is a nonprofit
purpose, and
• the number of visitors to the site per
• placement of the text within the book:
day, and
For example, a half-column quote
• whether the text will be used in a print
placed at the beginning of a chapter or
publication as well as the website.
book may result in a higher fee.
For example, will you use the text in
Generally, you should expect to pay
a magazine and on the magazine’s
anywhere from $100 to $400 for use of
website?
text in a book, depending on the size of the
A national magazine may charge between
print run and your rights request. By way
$100 and $500 to allow you to post an
of example, one national magazine charges
article on a website, with higher fees being
$100 per column of text (there are three
charged for popular commercial sites—for
full columns to a standard page) for use in
example, posting a review of a movie at
a book with a print run over 5,000 copies,
a high-traffic Hollywood studio website.
and $125 for print runs over 100,000.
Many publishers limit the length of time for
Sometimes, the fees may seem high. For
these permissions to one year or less.
382 | THE COPYRIGHT HANDBOOK
Minimizing fees
This section provides samples of each.
It’s possible to get fees lowered or avoid
Sample permission letter agreement
them entirely by doing any combination of
the following:
This short-form agreement is similar to
• seeking a one-time nonexclusive use,
those used by many magazines. A variation
as long you are not planning to write
on the permission request letter above,
future editions or different versions of
it is intended for authors and publishers
your work
who only want to reprint text, whether
• narrowing your permission request.
in printed form or on a website. This
The narrower your request, the less
approach—turning the request letter into
you may have to pay. For example,
an agreement—is recommended if your
don’t ask for “worldwide rights, all
request is simple and you have agreed upon
languages” if you only need “United
the terms. For example, if you want to
States rights, English.”
include several paragraphs from an essay on
• acquiring multiple items from one
your website, newsletter, or book, this form
publisher. Often, you can reduce your
should be sufficient.
per-item fee by licensing more than one
work from the same publisher.
Does the Agreement Have
• paying up front. You may be able to
to Be in Writing?
lower the fee by offering to pay up
front instead of waiting 30 or 60 days.
Unless you have an “exclusive” agreement,
The Copyright Handbook Page 66