Permissions and Copyright

January 19, 2000
Notes By Rachel Markowitz

It's probably not too much of a stretch to say that editors and lawyers tend to speak a different language. At the January 19 BAEF meeting, Ivan Hoffman and Richard Stim attempted to bridge that gap in a lively discussion organized and facilitated by permissions editor Veronica Oliva.

Both Hoffman, of Los Angeles, and Stim, of San Francisco, are intellectual property lawyers who prefer being consultants to being in the courtroom. They advise publishers, writers, and artists on how to protect their work, not infringe on others' work, negotiate good contracts, and stay out of court. They are also both published writers.

A former music-business insider with over 25 years' experience in intellectual property law, Hoffman splits his time between lecturing worldwide and counseling publishers and writers. His web pages provide detailed information on rights and permissions in print or electronic formats. The site, useful for both publishers and creators, features articles on contracts, copyrights, trademarks, Internet and electronic rights.

Stim teaches intellectual property law at San Francisco State University and is a consultant to artists, photographers, writers, publishers, and toy licensers. He has written six books on intellectual property. His most recent one, Getting Permission: How to License & Clear Copyrighted Materials Online & Off (Nolo Press), explains how to obtain rights, permissions, and clearance while steering clear of legal problems. According to the Nolo Press Web site, Stim's book is the only one on the market to cover Web site permissions.

Why devote an evening to the seemingly narrow field of rights and permissions? For one thing, these are highly litigious times. This fact, combined with authors' increasing use of borrowed material, the mushrooming of electronic publishing, and publishers' penny-pinching, has made permissions a hot topic with huge sums of money at stake. Oliva said that as a permissions editor (a job which entails reviewing manuscripts for both publishers and authors and making recommendations on whether or not to pursue permissions or obtain releases), she has "too much work" these days.

And this information is not just for permissions editors; anyone from an acquisitions editor to a proofreader can spot "red flags" and help avoid legal headaches. In a domain of the law particularly subject to interpretation, determining what constitutes fair use is one of the grayest areas. Hoffman noted that in some cases, using only three words of another's work could be considered infringement. Oliva added, "The copyright law provides guidelines for determining fair use, but does not give the specific number of words. When you come down to it, it's a matter of opinion and experience."

Hoffman and Stim used a number of recent court cases to illustrate the complex legal issues around copyright infringement. One case involved a dark cloud over the feel-good bestseller Tuesdays with Morrie. A photographer has sued the publisher, Doubleday, because of their differing interpretations of the photographer's contract. The photographer, in her invoice, had given the publisher permission to use her photograph on the jacket of 20,000 copies of the book for payment of $500. The book went on to sell over 2 million copies. Doubleday claimed it had fulfilled its contractual responsibilities with the $500 payment; the photographer claims she's due much more.

No one could have predicted the runaway success of a book like Tuesdays with Morrie, but that is no excuse for signing away all of your rights, Hoffman said. Copyright is a bundle of rights; as a creator, you must assign the rights to reproduce and distribute your work. While Hoffman conceded that contracts are based on the formula of "who wants who more," his mantra for authors is to "own everything." Retain as many rights as possible, including rights to all media, editions, advertising, merchandising, and derivative works. After all, who knows how far your next work of art could go!