By Mike Hiestand
Copyright law can sometimes get pretty complicated. One thing, however, is clear: the surest way to use a copyrighted work legitimately is to get permission from the copyright holder.
Of course, not all uses require permission. Some works – particularly older works – have fallen into the public domain and can be used by anyone without prior permission. At other times, student media can claim a “fair use” of a copyrighted work that allows them to use a limited amount of that work without permission as part of bona fide newsreporting or commentary. Unfortunately, determining whether a work is in the public domain or whether a use qualifies as a “fair use” can sometimes be tricky. At other times it’s simply clear that no excuse or justification for using someone else’s work without permission exists. They own it. You want to use it. You need their permission.
Obtaining copyright permission isn’t especially complicated – at least not for the uses most student media require – but it does require some legwork, plenty of time – and even some luck.
Identifying the Copyright Owner
The hardest part of obtaining copyright permission is often determining – and finding – who you need to ask. In many cases, the creator of the work is also the copyright owner. That is, a photographer owns the copyright to her photos. A poet owns the copyright to his poems. At other times, however, the original author has sold or transferred ownership of the copyright to a third-party – much like the original owner of a car transfers ownership to someone else when he sells it – and permission to use the copyrighted work must be provided by the new owner. Also, where a person creates a work as an employee, the law generally recognizes the employer not the employee/creator as the owner of the copyrighted work.
Fortunately, the copyright owners of many of the works that student media frequently want to use (music lyrics, photos from other news organizations, book excerpts, etc.) can be fairly easily tracked down. For example, if you’d like to republish a passage from a book, the first thing you should do is look for the copyright notice (for instance, © 2005 John Doe), generally located in the first couple of pages, which identifies the owner of the work at the time of publication. (If the notice is old, the work may have been subsequently sold). For CD’s, books and other published works, the name of the record company or publisher is also usually listed near the copyright notice. In such cases, a good first step is to contact the publishing company’s “Copyright Permissions Department.”
Unfortunately for those trying to hunt down a copyright owner, the law no longer requires the inclusion of a copyright notice as a condition for obtaining a valid copyright. Therefore, unless you know for sure that a work is not copyrighted, you should assume that it is even where no copyright notice is present. In such cases you’ll have to track down the copyright owner in other ways.
Your first stop should probably be the U.S. Copyright Office website (http://copyright.gov), where you can search its database of copyright registrations. As of December 2005, the database will allow for “keyword” searches, which will greatly expand its usefulness. Though the law no longer requires that a work be registered with the U.S., most popular commercial works are. Still, as with copyright notices, the absence of a formal registration does not mean the work is free to use.
Trying to track down permissions for audio/visual works, such as popular music or films, can be an especially trying experience as such works usually incorporate multiple copyrights. In addition, each of the copyrights may include several separate rights (for example, a right to reproduce the work, a right to distribute it, another to perform the work, and still another to display it), each of which must be licensed separately and may well be owned by separate entities. Because of the complexities involved, you may want to limit your use of these items to what would be considered a “fair use,” or – if you have the budget – you may want to contact a company that specializes in obtaining copyright permission to help you obtain permissions for particular songs.
The Internet has made tracking down copyright owners both more and less difficult. It can be harder because of the ease with which copyrighted material is transferred in a digital format. Photos, graphics and other material can be downloaded or scanned and copied to third-party sites – often illegally and repeatedly – with the click or two of a mouse button. Simply finding a work online – for example, an image on a particular website – does not necessarily mean that the website operator can give you permission to use the work since he or she might be unlawfully using the copyrighted work himself. At the same time, however, the Internet is a powerful investigative tool. Inserting the opening line of a poem into a search engine, for example, will often bring up the author. Once you do successfully identify the copyright owner of a work, the Internet is also a wonderful tool for tracking and contact the owner down to obtain permission.
Asking for Permission
Once you know who owns the copyright, you need to ask that person or company for permission. While it is probably worth an initial telephone call, particularly at a smaller or less formal organization, most copyright holders require a written request. Your request should include:
While student media are frequently successful in obtaining copyright permission, that is certainly not always the case. Requests from student media, who often are seeking to use a work for free, often go to the bottom of the priority pile. You should have a back-up plan in place should your request be denied, ignored or should the owner demand a payment for use of the copyrighted material that is beyond your budget.
Obtaining Permission
It is always a good idea to obtain copyright permission in writing. While verbal permission is valid, it can be much more difficult to prove, especially following the passage of time. While copyright permission agreements or licenses for commercial uses can get pretty complicated, running several pages and full of “legalese,” most student media uses require much less. A simple statement describing the work and its intended use, signed and dated by the copyright owner or his lawful agent, will generally suffice.
Finally, it is important to remember that providing accurate credit or attribution for a copyrighted work (for example, “Source: Oh the Places You’ll Go, by Dr. Seuss” or “Photo Courtesy of People Magazine”) is not a substitute for obtaining copyright permission, where such permission is required. Journalism ethics and the law require both.