The Basics of Copyright Law for Writers
Whenever you use someone's work in your writing, you're stepping into the copyright law territory.
Most non-fiction books have quotes and images in them, so it's your responsibility as the author to clear copyright permissions for any intellectual property used. Failure to do so may result in being sued for copyright infringement, and thousands of dollars in damages.
As someone who went through a process of publishing a book, I know there's a lot more to it than finishing a manuscript (as daunting as it is) and finding a publisher. Here are some simple but important copyright basics for writers or anyone else interested in the subject.
What is Intellectual Property?
Intellectual property (IP) is a work that is the result of one's creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc. (Law dictionary)
There are 2 types of intellectual property:
- industrial property (inventions, trademarks, industrial designs) and
- copyright (all literary works, films, music and other artistic works).
So intellectual property rights are like any other property rights: they allow creators to benefit from their creations, and protect them from other people stealing (or infringing) on their work.
What Is Fair Use?
Every creative work is protected under intellectual property laws, and an unauthorized use of said work is illegal. However, there are exceptions such as fair use.
US copyright law states that
“The fair use of a copyrighted work <...> for purposes such as criticism, comment, news reporting, teaching <...> scholarship, or research is not an infringement of copyright.”
In addition, the works published by the federal government or by federal officials, common facts, materials for which the copyright has expired, and small portions of the text (in comparison to the whole text) are also considered fair use.
Seems pretty straight-forward. The trouble is, there isn't an agreement on what constitutes fair use. Some publishers use the word count (the limit is usually 300-400 words) as the main indicator, some look at your print run and anticipated price, some refer to the ambiguous "heart of the work" to determine whether the content you're reusing embodies the essence of the source work. Yet others look at the combination of all the factors. As one published wrote to me in an email:
"Fair use can be tricky, and unfortunately to my knowledge there is no hard line consensus on the stipulations."
If "fair use" is a subjective rather than a clearly defined legal term, who makes the call?
In some cases, given the brevity of the quote for example, you can determine "fair use" easily. Other cases are more complicated. As a general rule, fair use is more likely if the quoted material is short (1-2 paragraphs maximum) and doesn't represent a significant or key portion of the source material.
How to Obtain Permissions For Quotes
If the work you're using doesn't fall under the fair use category or any other exceptions, you need to ask for permission to use that work, and possibly pay the copyright owner a fee.
The sad reality is, the author of the work in question is rarely the copyright owner.
As a general rule, only if the work is self-published the author retains the copyrights. If it's published by someone else such as a publisher, newspaper or a magazine, they own the rights. Which means you need to contact them using an online form, an email address or a physical address in some cases to request the permission to reprint.
After they evaluate your request (which may take anywhere from a few days to 16 weeks) they decide whether to grant you the permission for gratis, quote a fee, or request some additional information.
- Copyright Clearance Center
Copyright Clearance Center enables businesses, academia and rightsholders to publish and share content while ensuring copyright compliance.
- Columbia University Copyright Guide
Information on how to request permission to use a copyrighted work from the copyright owner.
- Digital Copyright Slider Tool
Digital Copyright Slider for those interested in copyright.
- Permissions Guidelines
John Wiley & Sons' Author Guidelines for Copyrights and Permissions.
Sample Email to the Publisher
we are preparing a manuscript to be published by Feline Press, Inc.
Author/tentative title: Fluffy Kitty et al. “The Joys of Purring”. The book explores purring, scratching, playing with a dust ball, running weird and other cat behaviors humans love.
I request your permission to include material from CATS NAPPING by Bushy Whiskers. Please see the attached Permission Request Form for specific details.
F. Kitty, PhD
How to Obtain Permissions For Photos and Graphics
Your best bet is to use public domain images. This way you don't have to worry about permissions, and you're saving a ton of money for your book release party.
Just go to Google Images, there is a "Search tools" button at the top. Press on it, and you will get another menu containing the button "Usage rights". The standard setting is "Not filtered by license". Instead, you want to click on "Labeled for reuse". Now all the images you're looking at are all copyright-free.
Otherwise you will need permission to use artwork, photographs, charts, tables, graphs, and other representations "where, inevitably, you are using the entire representation, since the copyrighted features are complete in themselves and inherent in the whole work" (Wiley Publications).
Like with text permissions, you will need to locate the owner of the work, send a permission request form and hope for an enthusiastic "permission granted". More likely, you will be quoted a price, and you'll receive a contract specifying the duration of the copyright permission (1 year, 5 years, lifelong etc).
What Every Writer Needs to Know About Copyright Law
This Sounds Like a Pain in the Ass. Do I Have to Do It?
Yes, you do, for a couple of reasons.
First, you don't want to be accused of plagiarism. Reputation is everything to a writer, and once it's gone, you don't get it back. Whatever you do, try not to be associated with the p-word.
Although the copyright clearance process can be lengthy and frustrating at times, it is a necessary evil so to speak - especially considering the alternatives!
I am not a copyright lawyer. This article reflects my personal experience with obtaining reprint permissions and should not be considered legal advice. If you have any legal questions, please consult a professional.
© 2014 Lana Zakinov