Is That Copyrighted, and Do I Need Permission To Use It?
I, like many writers, struggle with using content from external sources. It’s in your best interest to know that you are not infringing on anyone’s copyright before publishing your work.
Before I proceed any further, let me state, “I am not a lawyer,” and I am not offering legal advice. I am expressing the copyright laws as I interpret them.
In general, the copyright laws I reference pertain to the United States only. Every country on the planet has its own copyright laws.
Copyright Protecting Your Own Work
In general, copyright protection for works created after January 1, 1978, are for the life of the author plus 70 years.
All your work is copyright protected as soon as you put the work in tangible form. As I write these words, they are automatically copyright protected under US law, even without formal registration.
Most longer works are registered with the copyright office, and a formal registration offers additional protections if your work is infringed upon. The US government makes it pretty easy to register your work.
The Copyright Office offers six main categories for copyright registration; Literary Works, Performing Arts, Visual Arts, Motion Pictures, Photographs, and Other Digital Content. Go to Copyright.gov for more information, instructions, and fees.
How To Ensure Copyright Compliance
This is a no-brainer, but in the planning stages of writing, you can decide not to include any material that may be under copyright protection. This is much easier to do when planning and executing your writing before you have a finished piece with a bit of “possibly” copyrighted content entrenched in your writing.
You may use content to U.S. works published before 1925. This material has fallen out of copyright protection. You may use content in Public Domain. And there is still more content available under Creative Common. With Creative Commons, you may use content without permission, provided you adhere to the license requirements listed for that content.
What’s Not Protected By Copyrighted
Ideas can not be copyrighted. However, the expression of an idea can be. Similarly, facts can not be copyrighted. For instance, the diameter of the moon is a fact, 3,474 km. (or 2,159 miles), and may be used freely.
US Federal government works may be public domain. I have used a lot of information from NASA, including Hubble deep space pictures, 3D topographical terrain maps of the moon, and Mars. See my article “A Piece of the Moon to Call Your Own”.
This NASA content can be downloaded and used freely. If they ask for attribution, I am more than happy to give it.
Titles, for the most part, are not protected by copyright. However, a title can be trademarked.
Trademark is different than copyright and offers a different type of protection. Trademarks are used in consumer products to prevent consumer confusion.
For instance, the song title “Yellow Submarine” by the Beatles is trademarked. If you were to use this title in a commercial venture, you might be hearing from an attorney. A commercial venture may include tea shirts, bumper stickers as well as books.
To check that a title has not been trademarked go to the uspto.gov website. They have free trademark search features using their Trademark Electronic Search System (TESS).
What is considered fair use? I don’t know. Neither do you. I usually interpret fair use as using a small amount of content from a greater whole, like quoting a sentence from a full-length novel.
Unfortunately, there are no regulations as to what amount of content is considered “Fair Use.” This means, if a copyright holder of the content you used wants to bring forth litigation, they can, and it will be a court that decides if any infringement took place.
Another mythology floating around is that attributing the work to the copyright holder alleviates the need to get permission to use the content. It does not.
I’ve seen this done with song lyrics quite a bit. A writer will quote a lyric, list the song the lyric is from, and the artist who wrote the song, believing that attribution equals permission. Attribution shows that you are not plagiarizing the artist's work; it is not a substitute for permission.
Reviewers are given more license to quote lyrics in their critique of the music.
I wrote an article “How To Legally Quote Song Lyrics in Your Stories, Books, and Articles”. In this article, I detailed how to obtain permission to use lyrics, so I will not repeat that information here.
If you find yourself in a situation where you don’t know if permission is needed for some content, contact a lawyer who is familiar with copyright law.
I did this. I was working on a piece that had a few photographs of state and city officials. I obtain these photographs by downloading the pictures from city and state websites. I thought this was permissible because I was familiar with the content from Federal sources. I learned from my lawyer that city and state governments do not follow the same “public domain” access to their content.
My lawyer's advice was that I was “probably safe” to use these photographs without formal permission. But to keep in mind, there is a slight possibility of being contacted if I did use the photographs.
Risk Assessment and Tolerance
Whether to use these photographs or not became a quick study of the risk assessment and tolerance. The piece would not generate any substantial income, and I have a low tolerance for risk. After attempting to obtain permission, which wasn’t successful, I deleted the photographs. I don’t think my piece suffered from the loss.
If you think hiring a lawyer to help determine copyright needs is expensive, try hiring a lawyer to defend you in a copyright infringement case.
Getting permission to use copyrighted material is a labor-intensive process. Sometimes just determining the copyright holder is a task. And that’s your first step, determine who is the copyright holder. With a book, you have the author and publisher to begin the process. I would start by contacting the book publisher.
Sometimes publishers go out of business, change hands, or are absorbed into another company or corporation.
Once you find the copyright holder, be prepared to provide the following information, the copyrighted material you want to use, how the copyrighted material will be used, in what context, number of copies expected to be printed or distributed, distribution (domestic or world-wide), price.
Copyright holders are under no obligation to respond to inquiries. Remember those pictures of government officials? I did try to get permission to use the photographs. I went through city and state channels, asking for permission to use those photographs. I never heard back from either agency.
There is no set fee for content usage. If you succeed in finding the copyright holder, they can charge whatever they want.
Do you really need to include copyright content? If so, I hope this article has brought some illumination to the process. For myself, I tend to avoid using copyrighted content. If you decide to pursue copyright permission, what I have done in the past is to make a dedicated folder for each piece of content. I kept a hardcopy of the content I requested to use, queries sent, and responses. A spreadsheet can keep you on top of non-responses and allow timely follow-ups.
The copyrighted material didn’t go into my work until I received permission from the copyright holder. I also had to agree with any restrictions or licenses placed on the content.