How to Secure Permission to
Use Copyrighted Works

Copyright owners have the exclusive right to reproduce, distribute, perform, display, and create derivatives of their works. Most others must obtain permission from the copyright owner to lawfully engage in any of these activities. This guide will aid in your quest to secure the right to use copyrighted works.

Step One: Select the work to be used.
Choose more than one work that will satisfy your needs if possible.

Step Two: Is permission required in order to use the work?
Securing permission is unnecessary if you determine a work is not protected by copyright.

1. Is the work to be used protected by copyright law?
2. Is your use of the work a fair use?
3. Are there any other statutory exceptions that negate the need for permission for the use of the work?

Step Three: Obtaining permission to use a copyrighted work.
Securing permission can be made less problematic by following this detailed approach:

1. Identify the copyright owner(s).
2. Contact the copyright owner(s).
3. Securing permission.
4. Keep a detailed record of your quest for obtaining permission.

Step Four: What can you do if you come to a “dead end” in your quest for obtaining permission for the use of a particular work?
There are strategies for dealing with the frustrating dead-end quests for permissions.

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Step One: Select the work to be used. If possible, consider several works that will satisfy your particular needs. There are many reasons why getting permission to use a particular work may not be possible. These include: The licensing fee for the use of a work may be more than you are willing to pay, the copyright owner may outright refuse to allow you to use their work, you may have trouble identifying the copyright owner, and so on. Therefore, it is important to consider comparable alternatives when selecting a work in case securing permission for your first choice becomes an impossibility.

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Step Two: Is permission required in order to use the work? It may be that you will not need permission in order to use a work. Sometimes this will depend on the work you choose, other times it may depend on your intended use of the work.

1. Is the work to be used protected by copyright law?

• As a practical note, assume all works are copyrighted. After careful investigation, if you cannot determine whether a work is copyrighted, secure permission to use that work.

• General Rule - There are many misconceptions that exist when determining whether a work has been copyrighted. The general rule is that all original works of authorship fixed in a tangible medium of expression are given automatic copyright. A work need not be registered with the Copyright office for it to receive copyright protection and not all works must display a copyright notice in order to receive copyright protection.

• Exceptions to the rule - Some works, by law, are not copyrightable:

– Federal government works. However, works that derive from federally funded projects and state government works may be copyrightable.
– Works that employ less than “minimal creativity” (i.e. lists of facts and discoveries). However, lists of facts that are ordered in a way that employs minimal creativity are copyrightable. The U.S. Supreme Court addressed this issue in Feist Publications, Inc. v. Rural Telephone Service Company, Inc.

– Works that have not been fixed in a tangible medium of expression. Ideas and thoughts that have not been recorded in any way are not copyrightable.

– Names, titles, slogans. Although these things are not copyrightable, they may be protected under trademark law. See: Copyright Management Center: Trademark Law.

– Procedures, processes, systems, methods of operation, concepts, principles. Although these things are not copyrightable, they may be protected under patent law. See: Copyright Mangement Center: Patent Law.

• Duration - All copyrights have a limited duration. Once a copyright expires, the work falls into the public domain and anyone may use it freely and without permission. The duration period of a copyright will depend on one of many factors and may take a great deal of investigation to ascertain. These factors may include, but are not limited to: Date of creation of the work, date of the death of the author, whether the work has been registered with the copyright office, etc. For assistance with determining copyright durations, see:

– When Works Pass into the Public Domain

– U.S. Copyright Office’s Circular 15a: Duration of Copyright

– Identifying the Public Domain, prepared by Kenneth D. Crews for the Variations2 project

• Assistance - You may want to search the U.S. Copyright Office catalogs and other records to aid in the determination whether a work is copyrighted. These catalogs are available at several libraries across the country. For a fee, the U.S. Copyright Office will do a search on your behalf. The current rate for a search is $80 an hour. For more information about searching the U.S. Copyright Office catalogs and records see the U.S. Copyright Office’s Circular 22: How to Investigate the Copyright Status of a Work. It is important to remember that a work does not need to be registered with the office to receive copyright protection. Therefore searching the office is just one step in determining whether a work is copyrighted.

2. Is your use of the work a fair use? The law allows the use of a work by others without permission of the copyright owner if the use of the work falls within the definition of “fair use”. For more information on fair use, see: Copyright Management Center: Fair Use Issues. After evaluating your use of the work, if you are still unsure whether it is a fair use, you may want to secure permission in order to insure protection from liability of infringement.

3. Are there any other statutory exceptions that negate the need for permission for the use of the work? The Copyright Act enumerates several exceptions to the exclusive rights held by the copyright owner. Other than the exceptions involving educational purposes, many of the exceptions are narrowly constructed and compliance with the law will involve meticulous planning.

• Statutory Exceptions to the Exclusive Rights of Copyright Owners
• Educational exceptions:

1. Face-to-face teaching activities of nonprofit educational institutions
2. Distance Learning-TEACH Act
3. Framework of Rights and Exceptions, prepared by Kenneth D. Crews for the Variations2 project

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Step Three: Obtaining permission to use a copyrighted work. If you determine that: (1) the work you have selected to use is protected by copyright, (2) your use is not a fair use, and (3) no statutory exceptions apply to your use of the work, you must secure permission to use the work. There are three main steps in the permission securing process. Each step may take more time than expected, or even worse, may turn out to be a “dead end” in the quest for securing permission. Therefore, start the process for obtaining permission well before you will need to use the work.

1. Identify the copyright owner(s). There are several methods for determining who owns the rights to a work. Unfortunately, none of these methods are foolproof. Also, some works encapsulate multiple rights, each of which must be accounted for when obtaining permission.

• Examine a copy of the work. Look for the copyright notice (copyright by. . ., ©, copr.) and the name of the author and publisher to help determine the copyright owner. This method for determining the copyright owner is not always accurate. Copyrights may be transferred after the copyright notice has been published. Remember, the absence of a copyright notice does not mean that the work is in the public domain. For more information see the U.S Copyright Office’s Circular 3: Copyright Notice.

• Conduct a search on the internet. Conducting a search for titles, authors’ names, publishers, parts of the text, a transcript, or lyrics of the work may help to discover the identity of the copyright owner. There are also many online organizations that can help identify the owner of a copyright. Often, these organizations can also contact the copyright owner or grant permission on behalf of the owner. For a list of these organizations and more information, see: Copyright Management Center: Collective Rights Organizations.

• The U.S. Copyright Office keeps a record of all copyright registrations and documents submitted to them. However, this method of identifying the copyright owner will not cover all works because authors do not have to register their works in order for them to qualify for copyright protection. Also, transfers of copyright since registration may not have been recorded with the U.S. copyright office. To search the U.S. Copyright Office’s records of registrations and ownership documents since 1978, see: Copyright Records. For more information about access to the U.S. Copyright Office’s records, see: Obtaining Access.

2. Contact the copyright owner(s). After identifying the copyright owner, you will need to contact them in order to secure permission.

• Many times the copyright owner may prefer or require permission requests be made using a certain medium (i.e. fax, mail, etc.). Often, the use of an undesired medium will result in a non-response to your request. Telephone calls may be the quickest method for getting a response from the owner, but usually must be followed up with a fax, e-mail, or letter in order to convey the information that the owner will need to make decisions concerning the request.

• Publishers often have websites that prescribe a method for contacting the copyright owner. Search the website for a permissions department or other contact person.

• There are many collective rights organizations that provide efficient methods of contacting copyright owners. By providing services online, most of these organizations are able to expedite the process even more quickly. These organizations are sometimes capable of contacting the rights owner with your request or granting permission for use of the work on their behalf. For a list of these organizations and more information, see: Copyright Management Center: Collective Rights Organization.

3. Securing permission.

• Collective rights organizations offer an efficient method for securing permission to use copyrighted works and sometimes provide the only avenue by which permission can be sought. By acting as agents of copyright owners, these organizations may be able to grant permission to use copyrighted works on behalf of the owner, or in other cases, they can contact the owner on your behalf. Because many collective rights organizations offer their services online, some permission requests for using copyrighted works can be granted instantaneously. For a list of these organizations, see: Copyright Management Center: Collective Rights Organizations.

• Some copyright owners furnish their own permission agreement form that can be downloaded from their website.

• Drafting a permission request letter. For sample permission letters see the Copyright Management Center: Permission Letters.

• The copyright owner may need certain, specific information concerning your request for permission to use their work. Any pertinent information left out of the original request may result in the process taking longer than needed. Be sure to include the following pertinent information:

– Who: Permission fees are often calculated by copyright owners according to the number of people who will view their work or the number of copies that are made of their work. Always include the number of copies that you wish to make or the number of uses intended (estimate the number if you have to). If the work is to be put on a website, include the estimated “hits” that the website will receive. If, in the end, more people view or receive copies of the work than you stated in your initial request, you will need to contact the owner with that information. When possible, provide assurance that the work will only be viewed by the number of people stated in your request. Because it so easy to share information in today’s world, copyright owners are more likely to grant permission if they know their work can only be accessed by the limited number of people that you have requested permission for. Any sort of password protection for online distribution, monitored use in lectures, or other possible methods of limiting access to the copyrighted work should be stated in your request.

– What: Be as specific as possible when you cite the work you wish to use. If you plan to use only part of a work, the fee may be less if you request permission for only that portion instead of for the entire work. For text works, if you do not intend to use a whole work, include page numbers, sections, chapters, etc. For recorded works, include starting times and ending times.

– When: The copyright owner will want to know when you plan on using the work and for how long. Permission fees are often based on the amount of time the work is to be used. Some owners may be wary of granting permission for extended periods of time or for dates far in the future.

– Why: The purpose of your use of the work may also affect whether permission is granted and/or the amount of the fee assessed. Be sure to include the nature of the use, such as: commercial, classroom learning, distance education, non-profit, research, etc. If copies are to be sold in some manner, include the selling price.

– Where and How: Include information about how and where the work will be used. Such information may involve: Classroom copies, overheads, reserves, course pack, password protected online displays, websites, etc.

• Make the process easy for the copyright owner. The less effort the owner has to put forth, the more likely you will get permission to use their work quickly (or at all). To assist the copyright owner, include a second copy of your request for the owner’s records. Also, enclose a stamped self-addressed envelope for the owner’s convenience.

4. Keep a detailed record of your quest for obtaining permission. There are two main reasons you will want to keep a detailed record of your permission. First, you may need to refer to the terms and scope of the permission (i.e. duration, purpose, etc.). Second, you may want to secure permission in the future, either of the same work, or another work controlled by the same copyright owner. These records will supply not only the contact information, but also assist you in gauging the amount of time needed to get permission from a particular copyright owner. Possible information you will want to keep in your records may include:

· Citation & Name of work
· Author/Creator
· Type of media
· Type of use/# of copies
· Copyright owner & contact person
· Contact information
· Date permission requested
· Date permission granted
· Amount Due
· Due Date
· Expiration of permission

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Step Four: What can you do if you come to a “dead end” in your quest for obtaining permission for the use of a particular work?
This is a common problem which can be extremely frustrating.
Kenneth D. Crews’s paper, When You Cannot Get Permission: Dealing with the “Dead End” of a Copyright Quest, contemplates strategies for dealing with dead ends:

1. Return to fair use.
2. Replace the materials with alternative works.
3. Alter your planned use of the copyrighted works.
4. Conduct a risk-benefit analysis.

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Last Updated: March 6, 2006

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