At some point you may want to use someone else's work. You should first determine whether the work is protected by copyright. Is the work copyrightable? Is it in the public domain? Is your use of the work barred by another area of the law such as trademark law? Keep in mind that a work doesn't have to have a copyright notice affixed to it to be covered by copyright.
Once you've gone through the above analysis and determined that the material you wish to use is protected by copyright, you should seek the copyright owner's permission to use the work. You will first need to identify the copyright owner, and then request permission for your specific use. If you are told that you cannot use the copyrighted work, this doesn't necessarily preclude you from using the work. You will not lose the ability to assert that your use is a "fair use" even if the copyright owner refuses to give you permission to use his work. For more on fair use, see the section on Fair Use in this guide.
1. Identifying the Copyright Owner
In many cases you will be able to quickly identify the copyright owner of the work. For some works, however, locating the copyright owner becomes an involved process. As you research, keep in mind that you may need to contact more than one person to get the necessary permission. For example, if the work you wish to use is the photograph of a person, you should seek permission from the copyright owner of the photograph as well as the person in the photograph if you will use the image of the person for commercial purposes, such as advertising. See the section on Rights of Publicity for more information on this issue.
You will likely find information about the copyright owner by searching several places:
- Copyright Notice
- First, examine whether the work contains a copyright notice. A copyright notice will have the copyright owner's name, which you can use to search for contact information. Note that if the work was first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. See the section on Works Not Covered By Copyright to learn more about this issue.
- Author's Name
- Check to see whether the work is attributed to an author. In some cases the author is also the copyright owner, but you should make sure that the author has the authority to exercise the exclusive right you wish to use--i.e. she has not licensed or transferred the exclusive rights, or that the author's creation is not a work-for-hire. If the author is not the copyright owner, she can tell you who commissioned the work or to whom she transferred ownership.
- U.S. Copyright Office
- Use the Copyright Office's catalog to search copyright records online for information about the copyright owner, or any change in ownership that has been recorded with the Office. The online catalog allows you to search through records dated after January 1, 1978. In order to search for older records, you will need to either visit the Copyright Office and search the Copyright Card Catalog yourself, or pay a fee for a Copyright Office employee to conduct a search for you. See Circular #23 for more details.
- Search Engines
- If the work is online and you are unable to find an author or contact information for the website owner, use Whois to search domain registrars for the website's registrant name and contact information.
- Copyright Collectives
- A copyright collective refers to an organization that licenses works on behalf of copyright holders. The most well-known copyright collectives license musical works and distribute the licensing fees to the copyright holders of the musical work. The three copyright collectives are ASCAP, BMI and SESAC. Similarly, you can turn to the Copyright Clearance Center or iCopyright to get licenses for published documents, such as articles from newspapers, magazines, books, journals, etc.
- Although these collectives can streamline the request process for you, they often charge fees more suited to a large commercial operation. Consider visiting sites like CC Mixter for its musical works instead. See the discussion below on works covered by open content licenses.
As you conduct your research, refer to the Copyright Office's excellent resource on How to Investigate the Copyright Status of a Work.
2. Requesting Permission
Once you've identified the copyright owner, it is time to actually make your request. Often, an informal approach (by emailing or phoning the copyright owner) will work. If you opt for the informal route, be sure to follow up in writing. In many cases, misunderstandings arise over the scope of permission, and you can avoid such controversies by being explicit about how you wish to use the work.
Alternatively, you can go the formal route and send a letter to the copyright holder. In addition, if you need to contact a copyright collective to request a license, you should follow the procedures specific to their organization.
Your request should include:
- Your name and contact information
- Details identifying the work you wish to use (title, URL, etc.)
- The reason that you wish to use the work - for personal, research, commercial, commentary, criticism, review, or educational purposes
- How you intend to use the work - length of time, number of places (e.g. on your website, and your newsletter), etc.
For example, Jennifer Kyrnin at About.com, Indiana University-Purdue University's Copyright Management Center, and the University of Texas' Office of the General Counsel have sample letters that you can use to create your request.
3. Responses from Copyright Owners
If the copyright owner gives you permission to use her work, you are nearly done. Your last step should be to keep a record of how you found the owner, and a record of the permission that she gave you. As the Copyright Management Center at Indiana University notes: contact information will help you if you ever wish to get permission from the same owner in the future, and a record of the permission will assist you in the event that any future disagreements arise over the scope of the permission.
You should record:
- The name of work and any additional information (e.g., url, etc.)
- Copyright owner and contact information
- Author of work (if different from owner)
- Date you requested permission and a copy of your request
- Date the owner granted you permission, the conditions contained in the permission, and the expiration of permission
- How you actually used the work
- Any fees you paid to the copyright owner
If you cannot locate the copyright owner, or the copyright owner's response includes a large fee or a flat out denial, then your remaining options are:
- Fair Use
- Regardless of the copyright owner's response, you can still use the work if your use comports with the fair use doctrine. The doctrine of fair use makes it legally permissible for you to use a copyrighted work without permission for purposes such as commentary, criticism, parody, news reporting, and scholarly works. Whether or not your use is lawful usually depends upon how different or "transformative" your use is from the original. Unfortunately, there is no clear formula to determine the boundaries of fair use. Refer to the section on fair use for a general discussion of the doctrine.
- Link to the work
- If the work is online, perhaps you can simply link to the work and still get your point across. If this is a viable option, refer to the section on Linking to Copyrighted Materials for the legal issues that may arise from linking to other online works.
- Use Alternative Works
- Another option is to find another work altogether. If you choose this route, you may wish to consider using works not covered by copyright or works that are covered by open content licenses, such as a Creative Commons license, so that you do not need to get explicit permission to use them. The following sites contain works covered by open content licenses:
- CC Mixter hosts a collection of music covered by the Creative Commons license. You can download and sample, remix and then share the results with "anyone, anywhere, anytime".
- Flickr allows its users to offer their work under a Creative Commons license. You can browse or search through the Flickr photographs under each type of license.
- Open Photo has a variety of stock photos that are licensed for free commercial and non-commercial use.