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Copyright

Obtaining Permission

Finding the Owners

In the good old days, copyright owners were prominently noted in the copyright notice that used to be required. For works with a copyright notice, your task is easier (at least you have a starting point). But what about early works that are not in the public domain? For many works, figuring out whom to ask can be a significant undertaking. Sometimes it is impossible. Nevertheless, if you keep in mind the structure we've set out below, it can provide you with a systematic way to approach the task:

  1. Identify the author(s) and contact one or more of them
  2. Ask whether they own the copyright or whether the work was work for hire
  3. Ask whether they have conveyed away any of their rights, and if so, to whom

Where to find the registrations? Start with the U.S. Copyright Office. Stanford University has created a database containing renewal information from up to 1963, but it only includes textual works. Google has digitized the Catalog of Copyright Entries, which covers records from 1923 to 1978.

Getting Permission

Contacting the Owner

If you know who the author and the publisher are, you can contact them directly. If you do not know who the publisher is, The Literary Marketplace (for books) or Ulrich's Web (for journals - requires login) may help you. 

Once you know whom to ask, writing a letter, calling or emailing are all appropriate ways to initiate contact.

Confirming Authority of Ownership

Whenever it is unclear who the owner is, or if the owner is a legal entity of some kind (a business or organization), you should be sure that the person giving you permission is authorized to do so. For example, if you are negotiating with an author, question them about whether they retained copyright or whether they assigned it to their publisher. Sometimes people are unsure. If you are preparing a commercial product, you will need assurances of authority to grant permission because your publisher will expect those assurances from you.

Written Permission

Ideally, your permission should be in writing and should clearly describe the scope of what you are being permitted to do. Vaguely worded permissions may not cover your intended use. Be careful here: describe what you want to do precisely and include alternatives if you are unsure of format. For example, if you are preparing a web-based multimedia product, you may wish to distribute it on physical media under some circumstances.

Permission does not have to be in writing. If you receive oral permission, precisely describe what you want to do, and then document the conversation carefully. It wouldn't hurt to send a confirming letter to the owner, asking them to initial it and return it to you if it accurately reflects your agreement.

Unidentifiable/Unresponsive Ownership

Sometimes, even if you go through all the right steps, you may not figure out whom to ask, or the owner may not respond. There indeed may be no one who cares about what you do with a particular work. Still, the bottom line is that no amount of unsuccessful effort eliminates liability for copyright infringement. Copyright protects materials, whether the owner cares about protection or not.

While it is possible that a thoroughly documented unsuccessful search for an owner would positively affect the balance of the fair use test under the fourth factor or lessen a damage award even if the court determines that there was an infringement, there are no cases addressing this issue, so it's only a theory. Because your institution is likely to be liable, along with an accused individual, for the infringements of faculty, students and staff, most institutions advise such individuals not to use works for which required permission cannot be obtained. But many institutions are beginning to look at this reaction more carefully. They may determine that at times there are essential considerations favoring limited nonprofit educational use of materials that would counterbalance the risk of harm to someone's legal rights.


"Copyright Crash Course" by Colleen LyonUniversity of Texas Libraries is licensed under CC BY-NC 4.0