Depending upon the work, identifying the copyright owner can range from straightforward to complex to impossible. The author is the first owner of the copyright, but the author may sell or transfer the copyright to someone else. For many works, the publisher rather than the author is the copyright holder. You can often identify the owner through a copyright notice such as "© 2010 NYU Press." However, it is important to be aware that a copyright notice is not a legal requirement for a work to be protected by copyright -- not all copyrighted works will have a notice. If further research is required, try the following:
Copyright ownership information for works registered with the U.S. Copyright Office after January 1, 1978 can be searched using the Copyright Office's Online Catalog. For pre-1978 works, the Office's registration records are available only in hard copy form. The Copyright Office publication How to Investigate the Copyright Status of Work has information on how to search the Office's records or pay a fee to have the Office conduct a search for you. As with copyright notices, registration with the Copyright Office is not required for the owner to receive copyright protection. A work may still be under copyright even if it was never registered.
In some cases, you will not be able to determine who the copyright owner is, even after extensive research. If this is the case, you have on your hands a so-called "orphan work." Although the Copyright Office has expressed its support for new legislation to deal with the problem of orphan works, this has not yet come to pass. In the meantime, there are several Possible Solutions to evaluate if you cannot find the owner.
Image Credits: author images, Prints & Photographs Online Catalog, Library of Congress; Beecham's Music Portfolio, Wellcome Library London Ephemera Collection
Once you have identified the copyright owner, you then need to determine the substance of your permission request. It is important that your request clearly describe the scope of how you intend to use the work, otherwise the permission you receive may fall short of meeting your needs. For example, if you ask to use a work in a conference presentation, the permission may not include making the presentation available online, or publishing it in conference proceedings. Be sure to include all the rights you anticipate needing, and include alternatives if you are unsure of the format (e.g. print, DVD, web) in which the work will be used. If you will be using the work only for noncommercial, educational purposes, include this information as well -- many copyright holders will be more willing to grant permission if they understand that their work will be used for education.
The sample letters below can serve as your starting point:
Lastly, be sure to keep a copy of all permissions and license agreements! Having a written record can be invaluable if questions or disputes arise down the road, and allow you to demonstrate to others that you have the legal right to use the owner's work (particularly publishers, who will often require written proof that permission has been obtained).
Although getting written permission from the copyright owner is your best bet, permission does not have to be in writing. If you aren't able to get something in writing, document your conversation. You may also want to send a letter of confirmation to the owner setting out your agreement.
In some cases, you may never get a response from the copyright holder -- you may never even be able to identify who they are or how to contact them! It can be difficult to know how to proceed when you reach a dead end. Unfortunately, no matter how diligently you have tried to get permission, these efforts cannot completely eliminate the risk of infringement should you proceed to use the work. Columbia's Copyright Advisory Office has put together a helpful list of Possible Solutions for when you find yourself in this all-too-common situation.
Image Credit: file cabinet to heaven, t. magnum/nick p. Source: flickr.
Using public domain or open-licensed images can be a great way to avoid the hassles of getting permission. These sites offer millions of such images. However, not every image included in these sources is guaranteed to be freely usable for every purpose -- be sure to review the copyright information for the particular images you select.
As a copyright holder, you have the right to determine how your work is shared with and used by others. Retaining your copyright allows you to make decisions about how your work is distributed, accessed, re-used, and priced. Authors who transfer their copyright without retaining any rights may lose the ability to use and share their work in ways that are important to their academic careers -- distributing copies to their students and colleagues, making it available online, or reusing portions in a subsequent work.
If you have signed a publication agreement, then the answer depends on the terms of that agreement. Increasingly, journal publishers will allow authors to retain the right to "self-archive" their work in an online archive, such as an institutional repository or personal web site.
Yes! Although publishers often have a standard form agreement, you can still ask for the rights you need and negotiate an agreement that balances your rights with those of your publisher. The Scholar's Copyright Addendum Engine can help you to identify what rights are important to you, and the corresponding language to incorporate into your publication agreement.
Open access typically refers to scholarly journal literature that is freely accessible online, without monetary cost and free of most copyright and licensing restrictions. Open access publications usually provide immediate online access to your work upon publication. The Directory of Open Access Journals is a comprehensive listing of open access scientific and scholarly journals.
As a general matter, educational, nonprofit, and personal uses are favored as fair uses. Making a commercial use of a work typically weighs against fair use, but a commmercial use does not automatically defeat a fair use claim. "Transformative" uses are also favored as fair uses. A use is considered to be transformative when it results in in the creation of a new work, or uses the original work for a new and different purpose.
Weighing in favor of fair use: nonprofit educational; teaching (including multiple copies for classroom use); research or scholarship; criticism, comment, news reporting or parody; transformative (use changes work for new utility or purpose); personal study; use is necessary to achieve your educational purpose
Weighing against fair use: commercial activity; profiting from use; entertainment; non-transformative; for publication; for public distribution; use exceeds that which is necessary to achieve your inteded educational purpose
The second fair use factor commonly looks to whether the work in question has been published, as well as whether it is a "highly creative work" versus being primarily factual. Uses of published works are more likely to be considered fair than are uses of unpublished works, because the law values the copyright holder's right to determine whether and how a work is first published. Highly creative works -- e.g.fiction, art, music, poetry, films -- also receive stronger protection than factual, non-fiction works. Additionally, uses workbooks or other "consumable" works that are sold to educational markets are generally disfavored.
Weighing in favor of fair use: Published work, factual or nonfiction work, important to educational objectives
Weighing against fair use: Unpublished work, highly creative work (art, music, novels, films, plays, poetry, fiction), consumable work (workbook, test)
Image Credit: [Tibetan musical score], Wellcome Library, London.
The law does not set bright lines or absolute limits on how much of a work may be used to be considered fair use. Generally, the less of a work you use, the more likely it is that your use is fair. However, it is important to be aware that the "amount" factor considers not just the quantity of what you use, but also qualitatively assesses whether you have used the so-called "heart of the work." Even small portions may exceed fair use if the most notable or creative aspects of a work are used. While using an entire work is less favored under the amount factor, there are nevertheless many instances in which doing so will still qualify as fair use. If you have a legitimate need to use an entire work, e.g. an image that is being critiqued in a scholarly presentation, this may be appropriate and permissible as a fair use.
Weighing in favor of fair use: small portion used; portion is not central or significant to the work as a whole; amount used is narrowly tailored to educational purpose, such as criticism, comment, research, or subject being taught
Weighing against fair use: large or entire portion used; portion is central to the work or the "heart of the work;" amount used is more than ecessary for criticism, comment, research, or subject being taught
The fourth factor looks at whether or not there is some economic harm to the copyright holder as a result of your use. In evaluating this factor, it is important to consider not just whether your particular use has a negative impact, but also whether widespread use of the same type would have an effect on the work's potential market. Courts have established that licensing is part of the potential value of a copyrighted work, and so evaluating this factor may require an investigation into whether there is a reasonably available mechanism for licensing the work. If so, this weighs against relying on fair use.
Weighing in favor of fair use: no significant effect on market or potential market for copyrighted work; use stimulates market for original work; no similar product marketed by copyright holder; no longer in print; licensing or permission unavailable; supplemental classroom reading; one or few copies made or distributed; user owns lawfully acquired or purchase copy of original work; restricted access to work (to students or other appropriate group)
Weighing against fair use: significantly impairs market or potential market for copyrighted work or derivative; licensing or permission reasonably available; numerous copies made or distributed; repeated or long-term use that demonstrably affects the market for the work; required classroom reading; user does not own lawfully acquired or purchased copy of original work; unrestricted access on the web or other public forum