Clearing Permissions
What does “clearing permissions” mean?
Who is responsible for clearing permissions?
When I ask for permission, what exactly should I ask for?
What paperwork do I need to get?
How do I find the rightsholder?
How can I be sure I’m seeking permission from the actual rightsholder?
What if the copyright holder does not reply to my request?
What if I cannot find the copyright owner at all?
Do different kinds of material have special copyright clearance considerations?
- Publications Written or Co-written by You
- Works Made for Hire
- Interviews
- Unpublished Material
- Paraphrased or Summarized Material
- Poetry and Song Lyrics
- Works of Art
- Photographs
- Film: Publicity Stills, Frame Enlargements
- Cover Photographs and Advertising
- Creative Commons Licenses
What does “clearing permissions” mean?
When your publishing project includes copyrighted third party material—that is, material that you have not created or commissioned for your book, but is taken from another source—and if it does not withstand a careful fair use consideration, you will need to obtain permission to use that material in your work. Such material may include quoted text, images (photographs, drawings, diagrams, charts, maps), embedded sound or video excerpts, or even your own previously published work.
The process of acquiring permissions for an entire project is sometimes called “clearing permissions” in an omnibus sense—once all necessary permissions are acquired, the project is clear to proceed to the next stage in the publication pipeline.
You will generally need permission (1) when you reproduce a complete unit (e.g., a letter, short story, article, essay, complete chapter or section of a book, map, chart, or other illustrative material) and (2) when you create a “derivative” work based on the work of another person (e.g., revising a translation or a figure, such as a graph, table, chart, or map). Some university presses also require permissions (3) when you quote more than a small portion of a short poem or a stanza of a long poem and (4) when you reprint more than a few lines of song lyrics or music. Be sure to consult with your editor to understand your publisher’s policies and needs.
Who is responsible for clearing permissions?
This is a decision made between author and publisher, and is determined in the author’s contract. At university presses, the author or editor of a multi-contributor volume is usually responsible for clearing permissions. Both author and press must comply with copyright law, and it is the author’s responsibility to deliver materials to the press that do not infringe any copyrights.
In general, you need permission to reproduce any work or portion of a work created by another person, unless it falls under the fair use provisions of copyright law, is in the public domain, or is not copyrightable material.
What is the difference between getting permission from the rightsholder and getting permission from the owner of an object?
Generally, there are two different kinds of permission you might need as an author:
- Permission to use copyrighted material (i.e., intellectual property).
- Permission to use material specifically accessed—examined or acquired—for inclusion in your work.
This FAQ deals primarily with issues pertaining to copyright permissions, but it’s important to understand the difference, which can be confusing and may affect both you and your publisher.
Like a copyright holder, the owners of primary source materials like letters, personal journals, archival documents, rare publications and photographs, plus artworks, archival media, and other objects of study may also grant permission or issue licenses to reproduce their material in your work, but their authority is based not copyright law but on their ability to provide access to the material you need.
For the sake of this discussion, access is a privilege. As a condition of accessing the material, requestors are often required to agree to the provider’s conditions or terms of use by signing a form that may be called a permission, a license, an invoice, or an agreement—the terms can be, but are not always, interchangeable. It would not be incorrect to use any of these terms this way, but it’s important to understand that this type of agreement—or permission, or license—has nothing to do with intellectual property or copyright at all. It is based purely on the provider’s ability to allow access to the material designated for your book—not the intellectual property, but the physical material, even if it’s a high resolution digital reproduction of a painting, copied from one server to another. Such authorizations must typically be signed in order to become effective; once signed they are binding under contract law. As with the copyright agreements discussed throughout in this FAQ, it is important to consult with your editor to make sure that your publisher can operate within the terms of use stipulated by the provider as a condition of your use, and agreed to with your signature.
Such providers are not required to provide information about the copyright status of the materials they make accessible for use, but their paperwork typically includes boilerplate language dissociating any connection or responsibility for the rights of the copyright owner. Moreover, they often explicitly instruct users to also seek permission of the copyright holder (which would be necessary in any case) and state that failure to heed that requirement violates and nullifies the terms of the agreement the user signed in order to access the material. The burden is on you to read and understand the small print!
Because permission to publish material issued as a condition of physically accessing it is not based on copyright law, it does not matter if the material in question is under copyright or in the public domain: the terms or conditions of use can be restricted if the requestor agrees to them with a signature and/or by paying for the access license without question or negotiation. However, if the material is in the public domain, there’s nothing to prevent a person from using it as he or she wishes provided it can be accessed in a way that is not dependent on agreeing to a provider’s specific conditions of use.
Some providers may, on occasion, serve a dual role: they may be both enable access to the material and serve as the agent for the copyright holder. This is the case with some photo agencies, some artist and author agencies, and some galleries, among others. Again, the terminology used in the small print should clarify the rules of engagement, but don’t be afraid to ask your publisher for insight and assistance.
When I ask for permission, what exactly should I ask for?
Permission to reproduce third party material is generally restricted to a specific use (e.g., in a specific book or article, or for a maximum print run, or for a specified geographic area of sale). For online use, a term limit may be imposed, such as “seven years, renewable.” At the time of contract, ask your editor if your publisher has a standard permission form they would like you to use. If they do not have a standard permission form, ask what scope of rights you should clear. For example, a standard request for permission includes nonexclusive English-language rights throughout the world, is valid for all media and book formats, and includes the right to publish and/or license the material in the work as a whole for translation, book club, reprint, and electronic distribution. We have provided sample permission request forms at the end of this FAQ, but only use them if your publisher does not have a required permission form.
What paperwork do I need to get?
You should provide your publisher with copies of all permission grants to use copyrighted material and permissions paperwork governing the use of material physically accessed in the creation of your book. Be sure to keep the originals for your own files and future reference. Don’t just deliver them to your publisher as these agreements directly name and concern you.
How do I find the rightsholder?
If you found a text or image in a published source, check for credits on the copyright page, in the acknowledgements, and in the endnotes. Certain types of books often have a “Credits and Permissions” page at the back, and images often feature credit lines in captions. For example: in the case of a photograph found in a book, you might begin by contacting the person or institution named in the courtesy or credit line. This party may only be the source of the image—rather than the copyright holder—but even so, they may be able to refer you to the actual rightsholder. It never hurts to ask!
If no other sources are listed, then you should begin your inquiries by contacting the publisher to see if it has any records on file.
Some works may require permission from two or more rightsholders. For example, using a photograph of a sculpture may require permission from both the sculptor and the photographer if both are in copyright (see discussion here). Similarly, a passage of recorded music may require permission from several parties, including the composer, the performer, and/or performing rights societies like ASCAP, BMI, and SESAC. Finally, as we’ve discussed, you may need to clear copyright in an artwork or recording from one source, and obtain permission to reproduce the scan or digital file accessed from a different source through a license agreement.
A list of databases and other resources that can help locate rightsholders for particular kinds of material are available in our online resources.
How can I be sure I’m seeking permission from the actual rightsholder?
You can’t always be sure. Information about the status of a work is not always easy to confirm. Sometimes inaccurate copyright notices are published. Some credited works may actually have been created for an employer as work made for hire (also discussed here). But in most cases, the rightsholder is the creator, the estate of the creator, or an agency or organization that has been assigned this role on behalf of the creator or estate. This is usually a good place to begin your inquiries.
What if the copyright holder does not reply to my request?
Beware that for some copyrighted material the rightsholder may be difficult or even impossible to trace. Make every reasonable effort to contact all persons or organizations with a copyright claim on the work you wish to reproduce. Keep a log of your attempts to contact the copyright holder—this log should include whom you contacted, and how and when you contacted them. Document your efforts to contact these sources and retain the records of your search (letters, emails, phone logs, etc.). A copyright owner’s silence, even if you have asserted a deadline, is not agreement. Failure to clear permission with a known copyright owner may leave you liable for copyright infringement, but a documented “good faith” effort can help to answer a potential claim (or, in the rare scenario of an actual claim, can help to mitigate damages).
What if I cannot find the copyright owner at all?
If a work is still in copyright but no rightsholder can be identified after a good faith search, it may be what’s called an orphan work—a work that has been orphaned from its copyright holder, who may be lost, anonymous, or unknown (also discussed here). More than one entity may appear to be the rightsholder. This is particularly true of some visual material, especially from the early and mid-twentieth century, such as an advertisement for a defunct product published in a defunct magazine. In all such cases involving orphans, search in as much depth as you can; follow all reasonable leads, and retain records to show your due diligence in conducting a good faith.
Do different kinds of material have special copyright clearance considerations?
Note: These are general guidelines pertaining to materials still under copyright protection. Please consult your editor, your institution’s copyright librarian, or a campus legal counsel if you have specific questions.
Publications Written or Co-written by You
If parts of your current work are derived from and/or contain verbatim text from your previously published work, you will need to demonstrate that you have the right to reuse your work in a new publication or get permission to reuse it. Even if you are named as the copyright holder on the copyright page, the publisher may control publication rights depending on the wording of the agreement. Review the terms of your previous publishing agreement or check with your publisher to see if you have the right to reuse your writing in a work of successive scholarship. (Hint: some publishers post their policies about author reuse on their websites). If you don’t have the right to reuse your work, you must get permission to use it in your new work. You may even wish to regain the copyright in the earlier work. If the publisher will not relinquish the copyright, you must request permission to reprint the work in all forms and languages, and in any future editions of your book. Publishers are usually quite accommodating on these requests and will likely grant permission for republication without fee.
You likely will not need permission if the new work is tangentially related but not identical to or competitive with your earlier publication. Certain subjects will reoccur and demand new treatment as you develop your professional area of expertise, and it will be necessary to reiterate details and established facts in the development of a new piece of writing. Facts themselves are not copyrightable; copyright is concerned with the actual form of expression. The best thing to do when developing new work that builds upon earlier research is do just that—develop new work rather than recycle and repeat your previous expressions. This will make it easier for readers and scholars to identify, follow, and cite your work appropriately.
Works Made for Hire
If you hire someone, such as a cartographer, photographer, or translator, to prepare materials for your book, you become the owner of the copyright in those materials, provided (1) both parties sign a written contract stating that the material is a “work made for hire,” (2) the material is produced at your request and at your expense, (3) the agreement is signed before work is commenced, and (4) the material falls into one of the statutory categories of works made for hire: forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes.
A work is also “made for hire” if it is produced by an employee as a routine part of his or her job. If materials are made for you as work made for hire, you do not need permission, but as a courtesy you should usually provide the appropriate credit line or other acknowledgment.
Sometimes a work made for hire is a derivative work, such as a photograph of a painting or a translation of a text. If the work from which it is derived (i.e., the painting or the original text) is in copyright, to publish the derivative work you need permission from the copyright owner of the original work.
The US Copyright Office’s Circular on Works Made for Hire is an excellent source of more information on the subject.
Interviews
If you are quoting material from interviews conducted as part of the research for your book, it may be necessary to have an interview release form signed by your interview subjects. The release should clearly state that it covers publication. The wording of such releases should conform to any ethical guidelines that may be required by professional organizations in your field of study. In addition, if extensive material from the interview will be quoted, an assignment of copyright may be necessary. Depending on the subject matter, additional provisions for ensuring privacy or attribution may be needed. Consult with your editor if you have questions about this. (A sample interview release form is included as part of this FAQ.)
Unpublished Material
Scholars and researchers often access unpublished materials like letters and journals at cultural resource institutions like special collections libraries and archives. As discussed elsewhere, receiving permission to access and incorporate such material in your work from the owner of the physical item does not absolve you of the responsibility to address the copyright in the material. This may be especially true in the case of unpublished letters, where the copyright is held by the writer of the letter (or the estate of the writer) rather than by the recipient of the letter, who may have donated the letter to the archive in the first place. Sometimes the copyright has been transferred to a library or archive, but you cannot assume that access to an unpublished letter or other work allows you to include that work in your book without permission of the rightsholder if the amount of material would otherwise exceed fair use.
Unpublished material is subject to a higher level of copyright protection under U.S. copyright law, but like published work, unpublished material does eventually pass into the public domain—it just has a longer period of protection. In cases when the individual author and his or her date of death are known, the copyright term in the U.S. is the life of the author plus 70 years. The term of protection is 120 years from creation for all other scenarios. If the copyright of unpublished material is still in effect, it will be controlled by the writer, his or her estate, or an agent acting on the copyright holder’s behalf. You must make a reasonable search for the holder of copyright if that holder is not immediately known or available. As always, be sure to document your search in order to demonstrate due diligence.
Paraphrased or Summarized Material
Permission may not be needed for material that is not a direct quotation or a close paraphrase, but material summarized from another source should be clearly indicated as such, even if it is your own work. The form of the acknowledgement will partly depend on the various conventions that differ somewhat between academic and trade publications. In instances where you credit the original source, it is important to clearly demarcate the sourced material from your own statements. For an unusually extensive summary, paraphrase, or digest—especially if used for its own sake and not merely for criticism or illustration—the permission of the original author or publisher may be needed.
Poetry and Song Lyrics
The general guidelines for considering fair use apply as much to poetry and song lyrics as to other copyrighted works. The brevity and succinctness of many poems and song lyrics can substantially affect the outcome of a fair use analysis, however, and some publishers may require permission for all uses of such material. As always, consult your editor before making any final decisions about your use of such material in your publishing project.
Works of Art
As is the case with other types of copyrighted work, a fair use analysis is a useful exercise to undertake before gathering permissions to include images of artwork in your book project.
It is important to note that the copyrights in physical artworks do not belong to the owners of the artwork except in rare cases when the copyright holder (the artist) formally transfers the rights via signed agreement along with the transfer of ownership for the art object itself. In other words, someone who purchases an artwork does not also become the copyright owner; the creator (or her heirs) retains the copyright even after the artwork becomes another party’s possession.
For example, the copyrights in Andy Warhol’s artwork belonged to him regardless of who acquired and who now owns individual works by the artist. After his death, Warhol’s copyrights transferred to the Andy Warhol Foundation, which now controls all his copyrights. If you want to feature an artwork by Andy Warhol on your book cover, you need permission from the Warhol Foundation to do so—even if you already purchased a high-resolution reproduction of the artwork from the museum that owns it in order to create the book cover design and eventually print the book. In short, you could easily end up with two pieces of paperwork: (1) permission to publish the artwork, as a work of intellectual property, on your book cover, granted by the copyright holder—the Andy Warhol Foundation, and (2) the paperwork that accompanied the purchase of the image file supplied by the museum that owns the artwork itself.
If all this isn’t confusing enough, some parties who provide digital reproductions of two-dimensional artworks may assert copyright in the reproduction even though the copyright of the actual artwork does not belong to the provider, and sometimes even when the artwork is part of the public domain. While some image providers claim that this is a gray area of copyright law, US case law at the federal appeals court level and UK case law now generally follow the precedent established in Bridgeman Art Library v. Corel Corporation that a “slavish copy” of a two-dimensional artwork lacks sufficient originality to qualify for copyright protection. (Wikipedia offers a helpful overview of Bridgeman v. Corel here.) Some image providers, including some photographers and museums, continue to assert copyright in the “digital scan” or photograph of two-dimensional artworks, but their assertion is of dubious legality. Most, however, have switched to asserting controls and restrictions through license agreements issued as condition of accessing the image file for reproduction in your publication. Fortunately, a number of museums and cultural resource institutions have begun making digital images of public domain works freely available for download and use as part of their mission in recent years. Different conditions apply at different institutions, so be sure to understand and provide your publisher with documentation of the program’s parameters. Several examples are included in our online resources.
Three-dimensional works are another matter, however. Whereas a faithful reproduction of a painting or etching is dependent on technical craft but contains little or no originality, a photograph of a three-dimensional work can vary a great deal on camera angle, lighting, exposure, and other factors—even weather conditions—all of which greatly impact the resultant depiction of the underlying artwork. These images do display the photographer’s sense of interpretative decision-making, and the photographer can claim copyright in the photographs themselves, apart from the copyright in the artwork that is the subject of the photo. To incorporate these images in your work, you will need copyright permission from the artist and photographer if fair use does not apply.
The same is true of photographs of public art (e.g., a mural on a building or a sculpture in a town square), which may require permission of the copyright holder even though physical access is unrestricted by its owner. In other words: The fact that a work is in public does not mean it is “in the public domain” in legal terms. Its copyright may still be in force. For a more in-depth analysis these and related matters, Susan M. Bielstein’s book Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property (2006) is a wry and useful resource.
Photographs
As always, a fair use analysis should be considered before requesting permission. For instance, can the author assert that the use of a photograph is essential to the scholarly argument? Or is its use primarily illustrative or decorative? Academic works, such as those most commonly published by university presses, are likely candidates for a positive “fair use” assessment. If not a fair use, you will generally need permission from the photographer.
Obtaining a copy of a photographic image is not the same as obtaining permission to use it; the latter usually must be sought in a second step apart from acquiring the photograph itself (access as opposed to clearing copyright, as discussed above). If a photograph shows one or more identifiable persons, you may in limited circumstances need to obtain a release from them, not because of copyright, but because of their rights of privacy and publicity, depending upon the nature of the photo and its intended use, and whether the individual is a public or private figure.
Film: Publicity Stills, Frame Enlargements
You may use frame enlargements and publicity stills (both from films and from television shows) when you can justify their inclusion in the work under fair use guidelines—for example, when it can be argued that the illustration serves as a quote from the filmic “text” to illustrate a point. Be conservative in selecting material—if the still or frame illuminates a point you are making or is specifically discussed, then the use may qualify as fair use. Where possible, limit the number of frames reprinted from any one film and from different films that represent the subject of your work. If your use is decorative, you must seek permission from the rightsholder to include it. When purchasing material from a photo agency, read the conditions stated on the agreement and on the back of the photo very carefully (particularly the fine print). In all cases, acknowledge the original copyright holder. For a more in-depth analysis of fair use as related to stills and frame enlargements, the fair use section of the Society for Cinema and Media Studies website offers a number of policy statements and disciplinary guidelines that may be useful.
Cover Photographs and Advertising
Of special concern are illustrations that will appear on the cover or jacket of a book. Unless explicitly stated, permission for interior use (i.e. editorial use) usually does not extend to use on the cover, which is deemed more commercial or promotional, and can entail, for example, an additional usage fee. Depending on the subject matter, additional provisions for ensuring privacy or attribution may also be needed. It is also important to have specific permission to use illustrations in promotion and advertising of the book, including electronic or online use.
(A sample permission letter requesting cover use is included in our resources.)
Creative Commons Licenses
Creative Commons (CC) is a nonprofit organization that offers free legal tools to creators to promote the sharing of creativity and knowledge. Creative Commons licenses work in tandem with copyright law to offer creators a “some rights reserved” option, in contrast to the traditional “all rights reserved” policy. Creators can attach one of six CC licenses to their work that specify how others may use it without first obtaining permission. For use beyond what is permitted by the license, permission is required.
CC licenses are especially helpful when using material in ways that goes beyond fair use. If you want to use an image as decoration, or are unsure whether your intended use counts as fair use, you can often find CC-licensed material that will work as a substitute for the work you originally intended to use. The six licenses in the current, 4.0 Creative Commons Suite (earlier versions also exist), are described on the Creative Commons website.
For the use of outside material in a University Press title, CC BY and CC BY-ND are the most helpful license for authors. These licenses allow authors to use outside material as long as the original creator is credited, and in the case of CC BY-ND, as long as the original material is not changed.
Authors should consult with their editors before using material with other CC licenses (i.e., not CC BY or CC BY-ND) within their work, and before applying CC licenses to their own creations. It’s worth noting that, once affixed, a CC license cannot be removed from your work, so think carefully before you license your own work under this license.
You can search for CC licensed content here.
Note: It is easy for content to be posted online with a CC license by someone who does not actually own the rights. Just as content online is not necessarily free of copyright, so too content posted with a CC license may not actually be posted legally. A bit of due diligence research may be called for.