With more authors publishing independently than ever, I’m hearing more questions about permissions. Unfortunately, it’s a tough issue to navigate without having an experienced editor or agent to guide you.
Permissions is all about seeking permission to quote or excerpt other people’s copyrighted work within your own. This means contacting the copyright owner of the work (or their publisher or agent), and requesting permission to use the work. Most publishers have a formal process that requires a signed contract. Often, you are charged a fee for the use, anywhere from a few dollars to thousands of dollars.
An Important Preface to This Discussion
Quoting or excerpting someone else’s work falls into one of the grayest areas of copyright law. For understandable reasons, you might be seeking a “rule” to apply to reduce your risk or reduce time spent worrying about it.
Therefore, the biggest “rule” that you’ll find—if you’re searching online or asking people—is: “Ask explicit permission for everything beyond X.”
What constitutes “X” depends on whom you ask. Some people say 300 words. Some say one line. Some say 10% of the word count.
But you must never forget: there is no legal rule stipulating what quantity is OK to use without seeking permission. (Major legal battles have been fought over this question, but there is STILL no black-and-white rule.)
So any rules you find are based on a general institutional guideline or a person’s experience, as well as their overall comfort level with the risk involved in directly quoting/excerpting work. That’s why opinions and guidelines vary so much.
The other problem is that once you start asking for permission (to reduce your risk), that gives publishers (or copyright owners) the opportunity to ask for money or refuse to give permission, even in cases where the use would actually be considered fair. So you can get taken advantage of if you’re overly cautious. See the Catch-22?
It’s very difficult to advise on these matters in a general blog post, or even through personal e-mails, because each and every instance of quoting/excerpting may have a different answer as to whether you need permission or whether it would be considered fair use.
There is no rule you can apply, only principles. So I hope to provide some clarity on those principles in this post.
When do you NOT need to seek permission?
- When the work is in the public domain. This isn’t always a simple matter to determine, but any work published before 1923 is in the public domain. Some works published after 1923 are also in the public domain. Read this guide from Stanford about how to determine if a work is in the public domain.
- When simply mentioning the title or author of a work. You do not need permission to mention the title of someone’s work. It’s like citing a fact.
- When you are stating unadorned facts. If you copy a list of the 50 states in the United States, you are not infringing on anyone’s copyright. Those are unadorned facts.
- When you are linking to something. Linking does not require permission.
- When the work is licensed under Creative Commons. If this is the case, you should see this prominently declared on the work itself. For instance, the book Mediactive is licensed under Creative Commons, and so are many sites and blogs.
- When you abide by fair use guidelines. If you’re only quoting a few lines from a full-length book, you are likely within fair use guidelines, and do not need to seek permission. BUT this is a gray area.
When should you seek permission?
When you use copyrighted material in such a way that it cannot be considered fair use. In such cases, crediting the source does not remove the obligation to seek permission. It is expected that you always credit your source regardless of fair use; otherwise, you are plagiarizing.
I’ve written a separate post explaining the process for seeking permissions, with a sample request form.
A Brief Explanation of Fair Use
There are four criteria for determining fair use, which sounds tidy, but it’s not. These criteria are vague and open to interpretation. Ultimately, when disagreement arises over what constitutes fair use, it’s up to the courts to make a decision.
The four criteria are:
- the purpose and character of the use (e.g., commercial vs. not-for-profit/educational). If the purpose of your work is commercial (to make money), that doesn’t mean you’re suddenly in violation of fair use. But it makes your case less sympathetic if you’re borrowing a lot of someone else’s work to prop up your own commercial venture.
- the nature of the copyrighted work. Facts cannot be copyrighted. For that reason, more creative or imaginative works generally get the strongest protection.
- the amount and substantiality of the portion used in relation to the entire quoted work. The law does not offer any percentage or word count here that we can go by. That’s because if the portion quoted is considered the most valuable part of the work, you may be violating fair use. That said, most publishers’ guidelines for authors offer a rule of thumb; at the publisher I worked at, that guideline was 200-300 words from a book-length work in a teaching/educational context.
- the effect of the use on the potential market for or value of the quoted work. If your use of the original work affects the likelihood that people will buy the original work, you can be in violation of fair use. That is: If you quote the material extensively, or in some other way that the original source would no longer be required, then you’re possibly affecting the market for the quoted work. (Don’t confuse this criteria with the purpose of reviews or criticism. If a negative review would dissuade people from buying the source, this is not related to the fair use discussion in this post.)
To further explore what these four criteria mean in practice, be sure to read this excellent article by attorney Howard Zaharoff that originally appeared in Writer’s Digest magazine: “A Writers’ Guide to Fair Use.”
Does this apply to use of copyrighted work on websites, blogs, digital mediums, etc?
Technically, yes, but attitudes tend to be more lax. When bloggers (or others) aggregate, repurpose, or otherwise excerpt copyrighted work (whether it originates online or offline), they typically view such use as “sharing” or “publicity” for the original author rather than as a copyright violation, especially if it’s for noncommercial or educational purposes. I’m not talking about wholesale piracy here, but about extensive excerpting or aggregating that would not be considered OK otherwise. In short, it’s a controversial issue.
Note: You do not need permission to link to a website.
A note about song titles, movie titles, names, etc.
You do not need permission to include song titles, movie titles, TV show titles—any kind of title—in your work. You can also include the names of places, things, events, and people in your work without asking permission. These are facts.
Permissions for song lyrics and poetry
Because songs and poems are so short, it’s dangerous to use even 1 line without asking for permission, even if you think the use could be considered fair. However, it’s fine to use song titles, poem titles, artist names, band names, movie titles, etc.
For more help
- 12 Copyright Half-Truths by Lloyd Jassin at CopyLaw—addresses mistaken beliefs commonly held by authors; Jassin’s entire blog is very useful and worth reading
- Is It Fair Use? 7 Questions to Ask Before You Use Copyrighted Material by lawyer Brad Frazer
- Copyright Office FAQ: very helpful—addresses recipes, titles, ideas, names, and more
- Very helpful interview with Paul Rapp, an intellectual property rights expert, over at Huffington Post. Discusses song lyrics, mentioning famous people, what constitutes fair use, and much more.
- Trademark Is Not a Verb & Copyright Is Not a Verb (posts by a lawyer here at this site)
- Are You Worried Your Work or Ideas Will Be Stolen?
- Citizen Media Law: Works Not Covered By Copyright
Latest posts by Jane Friedman (see all)
- Is Self-Publishing a Good Springboard to Traditional Pub? - May 26, 2015
- Meet Me in Charlottesville on May 23 - May 22, 2015
- How to Evaluate Hybrid Publishers - May 21, 2015
- Getting an Anthology Published: Q&A with Margaret McMullan - May 18, 2015
- Are Literary Journals in Trouble? - May 16, 2015