Finding the Owner
If you are seeking to use a copyrighted work, you may have to obtain permission from the copyright owner. The owner may be the original creator of the work or that person’s employer. The original author may also have transferred the copyright to a publisher or some other party. In some instances, you may contact the owner directly. In other cases, you can secure permission on behalf of the owner by contacting an industry licensing agency or a publisher. Sometimes, the copyright owner may require a fee or impose other conditions. You have to decide if the cost and conditions are acceptable, and you should feel free to negotiate.
In most cases, the quest for permission will go smoothly, and may demand only time and bother. However, some situations become complicated, especially if you cannot locate the owner or get a response.
Keep in mind that you might not need permission if:
- your use is within fair use or another copyright exception;
- the work is not protected by copyright at all; or
- your use is within the terms of a license agreement, including a Creative Commons license from the author.
Identifying the Owner
Identifying the copyright owner is usually easy, but sometimes it is the most challenging part of securing copyright permission. In cases involving common materials such as books, articles, music, and photographs, the copyright owner can be anyone from the original creator of the work to the original creator’s heirs or the publisher. The first source for identifying the copyright owner is the copyright notice on the work, which often looks like this: Copyright © 2010, XYZ Corporation.
Another important source is the registration of the claim of copyright with the United States Copyright Office. However, this method will not cover all works or all transfers of copyright because authors do not have to register their works in order to qualify for copyright protection. For information about searching registration records, see http://www.copyright.gov/records/.
Searching copyright registrations and renewals can be crucial for identifying likely owners and for determining whether a work is still protected or is in the public domain.
A simple search on the Internet for titles, authors’ names, publishers, excerpts of text, or lyrics can also produce useful information about the work. Many organizations can help identify the owner of a copyright and can also contact the copyright owner or grant permission on behalf of the owner.
Because the law does not require a copyright notice or registration, and because the original owner may have transferred the copyright, sometimes none of the above methods will take you to the current copyright owner. In that event, you may simply need to contact any person associated with the work, such as the author, publisher, or benefactor, and ask about the copyright status and ownership of the work.
If you can identify and locate an author, you have a clear starting point. Begin with the easiest avenues for locating that person. A simple Internet search can provide direct contact information or connections through a university or other employer.
Benefits of Contacting Authors
Contacting the author puts you in direct touch with the source of the work, providing an opportunity to ask questions, get insights, and gain information about the work. Additionally, authors may be less likely than publishers to charge fees for the use of their material.
Drawbacks of Contacting Authors
The author of the material has transferred the copyright to a publisher or another party and may not even know that he or she no longer holds the copyright. Therefore, the most important source for the information you need may be the publication agreement. Be proactive and ask the author about the terms of any contracts, especially publication contracts, related to the work.
If the author has died, the copyright does not end upon death. You may have to find and contact the author’s heirs to determine who inherited the author’s copyrights. For more information, see Complex Searches.
A published work will often include the publisher’s contact information. Because many publishers are relatively easy to find, this option is compelling. Determining whether the publisher holds the copyright usually depends on the terms of the contract with the author, so be sure to ask the publisher if it in fact holds the copyright.
Benefits of Contacting Publishers
Publishers often have contact information and well-established systems for granting copyright permissions. Search the publisher’s website for a reprint or permissions office (e.g., the New York Times and Dow Jones Publishers).
Many publishers routinely take a transfer of the copyright from authors, and you can sometimes find the standard publication agreement on the publisher’s website. If the publisher is one that routinely takes the copyright, then permission from the publisher will probably be most reliable.
Drawbacks of Contacting Publishers
Publishers may limit the permission to only specific uses of the material, such as a narrow project or a limited time. They are also more likely than authors to charge a fee for your use.
This page provides an overview of procedures for contacting and requesting permission from a copyright owner to use a copyrighted work. If you already know exactly what you want and are in communication with the copyright owner, you may go directly to one of the model permission forms.
Procedures for Securing Permission
If you are just beginning the process, you may need to carefully consider the steps for securing permission, as detailed below.
Remember that permission is not always required to use a work, depending on the work you choose or on your intended use. You may need to secure permission if you determine that: (1) the work you have selected to use is protected by copyright (i.e., not in the public domain), (2) your use is not a fair use, and (3) no other statutory exceptions apply. The process of securing permission may take more time than expected, or even worse, it may lead to a “dead end.” Therefore, start the process for obtaining permission well before you will need to use the work.
Step 1: Contact the Copyright Owner
Once you have identified the copyright owner(s), contact the owner to request permission. Publishers often have websites that prescribe a method for contacting the copyright owner, so search the website for a permissions department or contact person. Be sure to confirm the exact name and address of the addressee, and call the person or publishing house to confirm the copyright ownership. Various collective rights organizations are sometimes able to facilitate granting permissions on behalf of owners. For a list of these organizations and more information. If the copyright owner is an individual, you will need to do the usual Internet and telephone searches to find the person. Be ready to introduce yourself and to explain carefully what you are seeking.
When contacting the copyright owner, use these tips to better ensure a timely response.
The copyright owner may prefer or require that permission requests be made using a certain medium (i.e. fax, mail, web form, etc.). If you do not follow instructions, you may not get a reply.
Telephone calls may be the quickest method for getting a response from the owner, but they should be followed up with a letter or e-mail in order to document the exact scope of the permission. E-mail permissions are legally acceptable in most cases, but getting a genuine signature is usually best.
The request should be sent to the individual copyright holder (when applicable) or permissions department of the publisher in question. Be sure to include your return address, telephone and fax numbers, e-mail address, and the date at the top of your letter or message. If you send the permission request by mail, include a self-addressed, stamped return envelope.
Make the process easy for the copyright owner. The less effort the owner has to put forth, the more likely you will get the permission you need. If you are using conventional mail, include a second copy of your request for the owner’s records.
State clearly who you are, your institutional affiliation (e.g., Columbia University), and the general nature of your project.
Do not send permissions letters to all possible rightsholders simultaneously. Taking the time to find the person who most likely holds the copyright will better yield success. If you do not have much information about who actually owns the copyright, be honest with your contacts, and they may be able to help you find the right person.
Step 2: Secure Permission and Write an Effective Letter
A “nonexclusive” permission may be granted by telephone or handshake, but an “exclusive” permission or a transfer of the copyright must be in writing and signed by the copyright owner. In all cases, a clearly written document with a signature is useful to confirm exactly what is permitted. Some copyright owners furnish their own permission form that may be downloaded from a website. If the copyright owner does not provide a permission agreement form, use the forms here, and follow these important pointers when drafting your own permission letter.
A most effective letter will include detailed information concerning your request for permission to use the work. Be sure to include the following pertinent information:
Who: Introduce yourself. Tell who you are and perhaps include a brief summary of your credentials. For example: “I am a professor of history at Columbia University and am the author of several books on American history.”
What: Be as specific as possible when you cite and describe the work you wish to use. If you plan to use the entire work, say so. If you need only part, give the details. For example: “I would like permission to reproduce pages 113 through 142 of [full citation to book].” You may need to be more detailed or include copies of the material, especially if you are using photographic images or sound or film clips.
How: Tell how you plan to use the work. Specify whether your use is commercial or nonprofit, for classroom learning or distance education, for research and publication, etc. Remember, the permission you obtain is limited by its own terms. For example, if you secure permission to include a video clip in a multimedia project for your own classroom teaching, the permission may not include sharing the project with colleagues, posting it to your website, or selling copies at a conference. If you want those rights, be sure to include them in the permission request.
When: State how long you plan to use the work, whether one semester or indefinitely. Some owners may be wary of granting permission for extended periods of time or for dates far in the future, but if that is what you need, go ahead and ask.
Where and How: Include information about how and where the work will be used. Such uses may involve classroom copies, reserves, coursepacks, password protected online displays, etc. Include the exact or estimated number of copies that you wish to make or the number of uses intended.
Why: Tell why you are contacting that person or entity for permission. For example: “I am writing to you, because I believe your company acquired the company that originally published the book.” Another example: “I believe that you are the grandson of the original writer, and therefore may have inherited the copyright to the letters and diaries.” If you are using materials from a library or archives, do not assume that the institution holds the copyrights. You need to investigate and ask.
Sometimes you need to be patient and persistent, and sometimes the owner responds quickly. In any event, the reply can take any number of possibilities:
- Permission Granted. Great news. Move to Step 3.
- Permission Denied. Find out why. Maybe you can negotiate a better result. In any event, you may need to change your plans or look for alternative materials.
- Permission Granted, but at a Cost. The copyright owner may charge a fee for the permission. You might obtain a lower fee if you change your plans, e.g., by copying fewer pages from the book or making fewer copies of the work. Sometimes copyright owners require their own permission form. Read it carefully. The form may impose limits or include legal constraints (“You agree to be bound by the law of Illinois”) that are not acceptable to you. The decision to accept will be up to you, your counsel or supervisors, and your budget.
Step 3: Keep a Record
Keep a copy of everything. If you successfully obtain permission, keep a copy of all correspondence and forms. Also, keep a detailed record of your quest to identify and locate the copyright owner. Why keep these records? In the unlikely event that your use of the work is ever challenged, you will need to demonstrate your good efforts. That challenge could arise far in the future, so keep a permanent file of the records. Moreover, you might need to contact that same copyright owner again for a later use of the work, and your notes from the past will make the task easier.
What If I Reach a “Dead End”?
What can you do if you come to a “dead end” in your quest for obtaining permission for the use of a particular work? If you cannot find the owner or you are getting no reply, your work may be an “orphan work.” You have a few alternatives in that situation, as detailed here.
If You Cannot Find the Owner
The situation is common: You want to use a copyrighted work beyond the limits of fair use or other copyright exception. You tracked down a likely copyright owner and have attempted to seek permission, but the effort simply has produced no conclusion. Worse, perhaps you did receive permission, but with burdensome conditions or a high price. Perhaps you wrote for permission, and the permission was flatly denied.
In some situations, you might have little choice but to absorb the bad news and change your plans. Much more complex and frustrating, however, is when you exert an honest effort, but you simply cannot find a copyright owner or your efforts go unanswered. When you cannot identify or locate the current owner, the copyright materials are sometimes called “orphan works.” Congress has considered legislation to address the problem of orphan works, but statutory protection is not yet forthcoming. In the meantime, what do you do when you reach that mysterious “dead end” of the quest?
1. You cannot identify a copyright owner
The work itself does not have a name, and you have searched through various different catalogs, databases, and other sources, according to the title or description of the work. Under copyright law, anonymous and pseudonymous works are still fully protected. Simply because you cannot find the name of the copyright owner does not mean that it is not under copyright. Nevertheless, you are left to ponder whom to ask for permission. Similarly, you may well be able to identify the original author or copyright owner, but that individual has died, or the company has gone out of business. You have not been able to track any heirs or successors.
2. You cannot locate the copyright owner
You have concluded that the work is protected, and you have been able to identify the likely copyright owner, but you simply cannot find that person or entity. No listing appears in any of the usual reference guides or directories. You also have conducted a search of the records of the U.S. Copyright Office, and you have found no current registration of a copyright claimant or any documentation assigning the copyright to a new owner. Perhaps the original copyright owner was a company or organization that ceased doing business years ago, and you have not been able to find any person or entity that currently holds the rights. Perhaps the copyright owner died, but the heirs are untraceable. The copyright, nevertheless, lives on.
3. You have contacted the copyright owner, but received no response
The copyright owner seems to really exist and to have an address or telephone number, but all of your efforts to obtain permission have been in vain. Your telephone calls go unanswered, and your letters drop into a bottomless pit. You even write a letter to the copyright owner declaring, “I will assume you are giving me permission unless you send me an explicit denial.” That creative effort might be helpful motivation, but silence is not a “yes.”
The diligence with which you pursue and explore the possibilities for identifying, locating, and contacting the copyright owner may vary under the circumstances of each project. You might only invest extensive effort when the project is of great importance or the use of that particular copyrighted work is essential to achieving your goals. Regardless, after expending much effort, you may simply find yourself reaching this dead end far too often.
1. Return to fair use
When you originally evaluated fair use, you may have focused on an assumption about the “potential market” for the work in question, and the possible harm to that market caused by your use of the work. Remember that “market effect” is one of the four factors to analyze in fair use. Now that you have immersed yourself into the quest for permission, you may have discovered that no permission seems to be forthcoming at all. If you really are at this “dead end,” you may very well have found that there is no realistic market asserted for this work. You may accordingly be able to reevaluate fair use a bit more generously than you had expected. For more information, visit the fair use section.
2. Replace the materials with alternative works
You may have indulged in your project with firm commitment to using particular images, specific paragraphs, or exact selections of music. You need to ask yourself whether those specific copyrighted works are the only materials that will satisfy your goals. In many cases, you can achieve your desired end results with a selection of copyrighted works that come from more cooperative copyright owners or that may be in the public domain and available for use without copyright restriction.
3. Alter your planned use of the copyrighted works
Your ambitious plans may have involved scanning, digitizing, uploading, dissemination, Internet access, and multiple copies for students and colleagues. Requests for broad or variable rights of use often scare copyright owners or leave them pessimistic. As a result, your inquiries can get tossed into the bottomless pit. If you simply cannot get permission, you might revise your ambitious plans to something more modest and controllable, thus increasing the likelihood that you are within fair use. When you rein in the number of copies, or the scope of access, or the potential for duplication and dissemination, you may find that you have strengthened your claim to fair use under both the “purpose” and the “market effect” factors.
4. Conduct a risk-benefit analysis
You have diligently investigated your alternatives. You do not want to change your project, and you remain in need of the elusive copyright permission. The remaining alternative is to explore a risk-benefit analysis. You need to balance the benefits of using that particular material in your given project against the risks that a copyright owner may see your project, identify the materials, and assert the owner’s legal claims against you. Numerous factual circumstances may be important in this evaluation. The “benefit” may depend upon the importance of your project and the importance of using that particular material. The “risks” may depend upon whether your project will be published or available on the Internet for widespread access. You ought to investigate whether the work is registered with the U.S. Copyright Office and weigh the thoroughness of your search for the copyright owner and your quest for appropriate permission.
Undertaking this analysis can be sensitive and must be advanced with caution and with careful documentation. You may be acting to reduce the risk of liability, but you have not eliminated liability. A copyright owner may still hold rights to the material and may still bring a legal action against you, based on copyright infringement. Your good faith efforts can be helpful, but they are not necessarily protection from legal liability. Members of the FIU community should consult with the University Counsel for assistance with this decision.