Permissions, Copyrights and Copy Wrongs
March 19, 1998
Gin trading is not dead in San Francisco, and Chronicle Books did grant permission to quote in return for two cases of gin and $300, Jane D. Steele disclosed.
One case of gin went to the author, and the house got the other, said Steele, a permissions editor at Chronicle Books. Though gin is unusual stock in trade, Gary Soto's poem "Oranges" is a 'cash cow' for Chronicle Books, says Steele, who joined online publisher Catherine Fowler, staff permissions editor Martha Granahan, and freelance permissions editor Veronica Oliva in a roundtable on permissions.
Most publishers expect an author to obtain permissions from copyright holders before submitting the manuscript, but a permissions editor, either staff or freelance, can help the author decide both whether permission is necessary and how to obtain it. Permission to use parts of a copyrighted work is not always necessary, but deciding what is fair use is not easy.
Two hundred fifty words is sometimes considered fair use, for example, but certainly not for short works such as song lyrics and poetry. To determine fair use, courts and editors consider the nature of the copyrighted work, the purpose and character of the proposed use, the requester's profit or nonprofit status, and the effect licensing will have on the potential market. Fair use limits the monopoly an author has for the duration of the copyright, but copyright duration itself can be difficult to calculate due to changes in copyright law that took effect January 1, 1978.
When in doubt, "Don't use what you don't have permission for," warned Martha Granahan, rights and permissions editor at Mayfield Publishing in Mountain View. Though a good-faith effort at obtaining permission may have worked years ago, it is increasingly risky today. "You really do need a yes."
Being sued is not the worst that can happen when a copyright owner claims you have infringed. "You might eventually win the lawsuit, but before your case goes to court, you can be ordered to pull your publication off the market," said Veronica Oliva, who organized the program and served as moderator.
Online publishers face more gray areas than print publishers and few standards, said Catherine Fowler, vice president and publisher of Direct Medical Knowledge, a start-up that makes available its archive of medical journal articles on the Web and in print. Copyright holders sometimes want more than a requester can spend. Some fear losing control of their material through electronic dispersal. Requests must be clear, specific, and in writing. Copyright holders want to know about the requester's business and details about the intended use before licensing their property.
Adaptation requires permission, Granahan reminded the crowd. "Murphy's Law applies. If you've obtained rights before, you may not get them again. Copyright holders have the right to say no. Count on the last permission [in your project] being the most problematic."
"Ask early. And it pays to be nice," said Fowler, who toiled for years inside New York's major publishing houses.
Handouts (reproduced with permission, naturally) included a section of definitions from the copyright law of the United States, a sample issue of "Copy Rights: The Newsletter on Rights and Permissions," and an Annotated Resource List compiled by Veronica Oliva and Sheri Gilbert.