In publishing, imitation is definitely not the best form of flattery. In fact, using another person's work—be it a small paragraph or an obscure quote—without proper permission may lead to copyright litigation.
The first, and most critical, step in rights clearance is determining what resides in the public domain and what does not. To put it simply, one can quote Shakespeare's plays without obtaining permission or paying any fees, unless one quotes lines from a specific edition published by a certain publishing house. But when it comes to works by, say, e.e. cummings or Jack Kerouac, clearance is required, unless one wants to invite infringement suits.
Title 17 of the United States Code determines that a work enters the public domain 70 years after the death of its author or, in the case of a co-authored work, the last of its authors. (This is similar to the rules observed by most EU countries.) Works made for hire, anthologies and those written under a pseudonym enter the public domain 95 years after their first publication or 120 years after their creation, whichever comes first.
So how does one go about determining what requires clearance? PW seeks the advice of Pondicherry-based Integra, a content services company known for its full-service project management, image research and permissions expertise. "Let's look at a recent higher-ed project. Our rights and permissions team did a ‘scrub,' or page-by-page review, and created a log of all text selections from third party sources. Many of the selections were determined to be ‘fair use' or in the public domain, therefore requiring no permission. The remaining few selections were duly cleared. This log then became a reference for future revisions," says founder, managing director and CEO Sriram Subramanya, pointing out that "the only budget constraint for doing scrubs is the need to match the time spent on reviewing each page with the set per-page charge."
But what does "fair use" mean? In general, fair use cannot be determined by a word or line count. It requires careful evaluation of each text selection against the four factors listed in Title 17 of the United States Code, namely, (1) purpose and character of the use (i.e., commercial, educational or nonprofit), (2) nature of the copied work, (3) amount and substantiality of the portion copied, and (4) effect on the copied work. The distinction between fair use and infringement is seldom clear-cut.
"Facts cannot be copyrighted, but the expression of those facts can," explains Subramanya. "If an author uses a chart from another book, whether permission is needed depends on how the chart is presented. If it is basically the same chart with new design features—nicer color, more contemporary presentation, for instance—then permission for adaptation is needed. If a totally new and different chart is created from the raw data for the chart, then no permission is required."
For subsequent editions, permission has to be sought anew if changes are made to the third party material. "If only the manuscript is revised but not the borrowed material, then we only have to inform those rights holders who want to approve the manuscript as a condition for granting permission. In such cases, the original author usually wants to see how the material is used or maybe has specific restrictions on its use that the rights administrator must check."
It is the rights holder's prerogative to specify how his or her material is used and acknowledged. "If the rights holder sets down specific restrictions on the use of the material, or requires specific wording for the acknowledgment, we will convey the information to our client. We can negotiate on behalf of our client, but they will be bound by the final outcome of that negotiation, unless they opt to replace the material with something in the public domain."
In many cases, adds Subramanya, the original publisher has returned the rights to the author, and the author may or may not manage his or her own rights. "If so, then we will contact the author or the agent directly for permission. Our initial contact is always the author's last-known publisher. Sometimes things do get complicated, especially when there are multiple rights holders for one selection. Different rights, such as print, digital, audio and film rights, might be licensed to different parties. As a rule, we write to all rights administrators to make sure we cover all the bases."
But what if the publisher does not respond to the permission request or the author remains elusive? "Copyrights are exclusive, so any use of copyrighted material requires express written permission from its owner. Sometimes there is no response because the sources contacted are not the actual copyright administrator. However, that does not release us from our legal obligation to get clearance. The bottom line is this: no response does not imply permission."
How about inserting a disclaimer in the acknowledgments when clearance is not complete by the time the book goes to press? "If all contact attempts fail, as in cases involving orphan works, we will notify our client so that they can replace the material with something in the public domain or that meets fair use, or with something original," adds Subramanya. "We do not encourage the use of blanket disclaimers. That does not prevent the rights holder from claiming infringement and will only highlight the fact that the book has material published without permission."
The cost of permissions is hard to estimate as there are many factors involved, including the popularity of the original author or book, as well as the estimated lifetime print run of the new publication, its distribution and format. "Permission for using a short quote from an academic book by a historian may be granted gratis, whereas one by a popular trade book author may cost up to $1,000. The fee for a short story may range from $500 to $30,000, while charts and graphs may be charged $50 to $1,000. Each rights holder or administrator has his or her formula for calculating permission fees."
Naturally, all fees are negotiable. "We try to obtain the best price for our client. Sometimes permission will only be granted if the print run is reduced or distribution is limited, but these are difficult to meet. Some rights holders or administrators base their fees on the reputation and budget restrictions of our client."
When seeking permission, a standard letter is sent to the copyright holder or administrator, which must include the selected material, a description of any changes or adaptations, the approximate number of words or lines, the title and author(s) of the source, and the original copyright date. Subramanya explains, "Information about our client's publication must also be provided, such as the language(s), estimated price, approximate page count, estimated lifetime print run, term of license, and territory of distribution. Our standard letter requests permission for all future editions, revisions, derivative works and special formats such as Braille as well. The fee will naturally go up, but this will save both time and resources when publishing a new edition or revision. It will also reduce the chances of permission being denied for future editions or revisions."
Generally, authors of higher-ed and trade books are responsible for copyright clearance, with their publishers stepping in whenever necessary and charging the costs back to the authors. For school publications, obtaining permission is the publisher's responsibility.
For Subramanya and his permissions specialists, tracking down the copyright holder is the most important step in rights clearance. "Sometimes, this is also the most difficult and time-consuming step. Once the rights holder is located, the negotiation is just a matter of course, although a great deal of discussion may be necessary before the rights holder will reduce the fees."