Monday, February 22, 2016

Four Ways to Tame Your Permission Fee Budget


Clearing rights and permissions can be both costly and time consuming.  Fortunately, the Copyright Act places exceptions and limitations on a copyright owner's right to demand a permission fee.  Obviously, not all of these exceptions and limitations will apply in every situation.  Start by asking yourself the following four questions.  If you answer yes to any of them, read on.  The use you are contemplating may be undertaken without permission.

  1. Is the work is in the public domain (i.e. out of copyright)? 
  2. Is the material uncopyrightable (e.g., unadorned ideas are common property)?  
  3. Is the use a fair use? 
  4. Is the material offered under a Creative Commons License?

    Below is more information about these important copyright exceptions and limitations. If after reading this you are still unsure whether you need to pay a permission fee, you should seek permission or the advice of counsel.
     

    1.  Public Domain (Expired & Forfeited Copyrights)
    Copyright protection does not last forever. That is why copyright is referred to as a "limited monopoly.” When copyrights grow old and die, the work they once protected falls into the public domain. How long copyright protection lasts depends upon a number of factors, including, the date of publication, the date of the author's death, and in which countries you intend to publish the work. Literary and artistic works published before 1923 are out of copyright in the United States, and can be used (subject to the below caveats) without permission.

    For works created after December 31, 1977, the duration of copyright is 70 years from the end of the year in which the author dies. For works for hire created after December 31, 1977, the duration of copyright is 95 years after publication. 

    For works published between 1923 and 1977 the term of copyright is 95 years from initial publication. However, special rules apply to works created or published before 1978. For example, before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright. If the owner failed to renew, their copyright was forfeited. 

    A tremendous number of works entered the public domain because renewal was not made during the 28th year. The renewal scenario requires a further qualification. If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner. For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew during the 28th year, the owner of the underlying work, a short story by Cornell Woolrich, did renew their copyright. Since the copyright in the film only extended to the new material added by the producers of the film, the owner of the copyright in the underlying short story was able to stop unauthorized distribution of the film. The takeaway? If a work is an adaption of another work, both the underlying rightsholder, and the holder of the copyright in the derivative work may hold rights. Similarly, before 1988, publication without a proper copyright notice could invalidate the copyright. Today, there are no renewal or notice formalities.

    Caution! Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as trademark or unfair competition law (which protects against confusingly similar usage by another); the right of privacy (which protects a person's right to be left alone); the right of publicity (which protects an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad. Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new copyrightable material, may also require permission. 


    Although a work may be in the public domain in the United States, it may still be protected in other countries. For example a work by a United States author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany, where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas.

    2. Uncopyrightable Material

    There are certain types of works that are immune from copyright protection altogether. Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to facts. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed, explained or illustrated. Be aware that where the dividing line between an unadorned or unprotectable idea lies, and one that is sufficiently developed to enjoy copyright protection, sometimes is hard to discern. As a general rule, copyright does not protect short phrases, names or titles either. However, short phrases, names and titles may be protected by trademark or unfair competition law if they serve a branding purpose. Fortunately, the use of a trademark as a point of reference in a story, or used in a non-deceptive way to criticize a product or service, will generally be deemed a fair or non-infringing use.

    3. Fair Use

    Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission. The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use can be looked at as a balancing act. It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. 


    While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement. The central point is that fair use determinations involve risk. So, if you can't make the decision yourself, and are risk adverse, seek permission.

    To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors. No one factor is determinative of the issue, although factor four, which relates to economic harm, weighs heavily in any fair use decision. 
     
    • The purposes and character of the use, including whether the use is primarily commercial;
    • The nature of the work that's been copied;
    • The amount and importance of what was taken in relation to the original work as a whole;
    • The effect the copying has on the marketability of the original work and its derivatives
    Cutting Through the Fair Use Gobbledygook 
    While there are no mechanical rules to define with precision what is a fair use, the following considerations, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.        

    • Fair use favors transformative uses. Use the work as a springboard for new insights. Critique the original. Make a connection between it and other works. Use it to buttress your own arguments, or the arguments of others.
    • Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one. That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music.
    • Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works.  
    • Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use.  
    • Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement. Make sure the amount you use is reasonable in light of the purpose of the copying.
    • Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively. 
    • Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
    • Parody is a work that that ridicules or mocks another work. Fair use favors parody. It does not favor satire. Make certain the parody is apparent. A conservative approach is to conjure up just enough of the original to convey your parodic points.  
    • Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
    • The most important consideration concerns economic harm. Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.  
    4. Creative Commons
    Creative Commons Buttons
    Devised by the Creative Commons ("CC"), a non-profit organization, standardized CC licenses give the public permission to share and use a creative work on conditions set by the copyright owner. While neither an exception nor limitation on copyright, by clearly stating what is a permissible use, a CC license short circuits the need to seek formal permission. A CC license button (or link to the license) will appear in close proximity to the work. If you violate the terms of a CC license, in addition to termination of the license, the potential consequences include compensatory or statutory damages, or an injunction. Therefore, you must read a CC license very carefully. Common to all CC licenses are the following conditions: "Licensees must credit the licensor, keep copyright notices intact on all copies of the work, and link to the license from copies of the work. Licensees cannot use technological measures to restrict access to the work by others." CC licenses are generally associated with online use.

    If you plan to make use of a work that does not fall within the above four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time.

    Finally, don't be afraid to negotiate rates with the rights holder, keeping in mind that non-profit organizations often receive more favorable permission quotes.   Also, if the amount you want to use is small, or the use will promote the rights holder, or contribute to the public good in a significant way, fees may be reduced or waived.  But, don't count on it.  

    Additional Resources:
    Classroom Use Guidelines (not legal authority; but agreed-upon minimums)
     
    DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  When in doubt, seek permission or the advice of counsel.

    LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley &; Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

    He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin