Unless your use of a work is fair use or the work is in the public domain, you will need to get permission before using it. If, after conducting background research and due diligence, you are still uncertain about the copyright status of the work, you should err on the side of caution and seek permission. Though it is important to properly credit the source of a work, giving credit to an author will not substitute for getting authorization or paying royalties, if such are required.
Who owns the copyrights in the work?
Generally, the author of a work owns the copyrights in the work. An exception is for "works for hire," which are works created by an employee within the scope of her duties. Copyrights for works for hire are owned by the employer. Copyrights may also be transferred through sale or otherwise.
How do I find the owner of a copyright?
There are several resources to help you locate the owner of copyrights. You should remember, though, that each "copy" "right" is separately assignable, so it is possible more than one person or entity may be involved. The Internet is an invaluable resource and you may find answers by entering the author's name, the title of the work and the word "copyright" into an Internet search engine.
Do not overlook the obvious. Many works contain copyright notices, which provide the name of the copyright owner. Contact that person or entity first. Websites often contain copyright notices or contact information in the legal notices or privacy notice sections of the site. Remember, though, that just because you found a work on a website does not mean the website proprietor owns the copyrights in the work - or has permission to reproduce it.
If the work does not contain a copyright notice, try contacting the publisher for more information. Another resource is the author or his/her family. Though you cannot be certain that the author kept the copyrights, he/she should not be overlooked as a resource. It is important to exercise some caution when dealing with heirs and family members of deceased authors, as they may believe the copyrights belong to the family, when in fact the copyrights may have been transferred or assigned.
The U.S. Copyright Office also has a searchable copyright database on its web site at www.copyright.gov, which contains records of registrations and ownership documents since 1978. Remember, though, that copyrights now exist at creation and the registration of copyrights is not mandatory. Private search companies can also assist your research, but can be costly.
Some companies specialize in representing artists or authors within an industry and may act as the sole licensing agent. We have provided some of the most common sources below.
- BMI, 320 W. 57th Street, New York, NY 10019, www.bmi.com.
- ASCAP, One Lincoln Plaza, New York, NY 10023, www.ascap.com.
- SESAC, 152 West 57th Street, New York, New York, NY 10019, www.sesac.com.
- The Harry Fox Agency, 711 Third Avenue, 8th Floor, New York, NY 10017, www.harryfox.com.
- Recording Industry Association of America (RIAA), www.riaa.com.
Fine and Graphic Art
- AMICO Art Museum Image Consortium, www.amico.org.
- Visual Artists and Galleries Association (VAGA), 350 Fifth Avenue, Suite 6305, New York, NY. www.vagarights.com.
- Artists' Rights Societies (ARS), 536 Broadway, 5th Floor (at Spring Street), New York, NY 10012, www.arsny.com.
- Graphic Artists Guild, 90 John Street, Suite 403, New York, NY 10038, www.graphicartistsguild.org.
- Society of Children's Book Writers and Illustrators (SCBWI), 8271 Beverly Boulevard, Los Angeles, CA 90048, www.scbwi.org.
Syndicates (News Columns, Editorials and Cartoons)
- Universal Press Syndicate, Permissions Director, Andrews McMeel Universal, 4520 Main Street, Kansas City, MO 64111-7701, www.uexpress.com.
- Tribune Media Services, Inc., 435 North Michigan Avenue, #1500, Chicago, IL 60611, www.tribunemediaservices.com.
- Creators Syndicate, Inc., 5777 West Century Boulevard, # 700, Los Angeles, CA 90045, www.creators.com.
- Los Angeles Times Syndicate, 2 Park Avenue, Floor 18, New York, NY 10016, www.newscom.com (note: there is a fee to view the site).
- AP/Wide World Photos: www.apimages.com.
- Jupiter Images: www.jupiterimages.com.
- Time & Life Pictures: www.timelifepictures.com.
- Worldwide Photojournalism: www.blackstar.com.
- Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, www.copyright.com.
- Publication Rights Clearinghouse, National Writers Union, 113 University Place, 6th Floor, New York, NY 10003, Fax 212-254-0673. www.nwu.org
- Samuel French, Inc., 45 West 25th Street - Dept. W, New York, NY 10010, 212-206-8990, www.samuelfrench.com.
- Dramatists Play Service, Inc., 440 Park Avenue South, New York, NY 10016, 212-683-8960, www.dramatists.com.
- Music Theatre International, 545 Eighth Avenue, New York, NY 10018, 212-868-6668, www.mtishows.com.
- Motion Picture Licensing Corporation, 5455 Centinela Avenue, Los Angeles, CA 90066, 800-462-8855, www.mplc.org.
- Movie Licensing USA (serves public schools K-12 and public libraries), 1-888-267-2658, www.movlic.com.
Orphan Works — When a copyright owner cannot be found
An "orphan work" is a common term used to describe a work that cannot be matched with an owner, or the owner of the work is known but cannot be found. Congress has considered legislation to address the problem of orphan works, but as of yet, nothing has been passed. So, if you find a work that you want to use and discover that it is an orphan work, what do you do? The tips below will help guide you in your decision making process.
- Copyright owner is unknown.
Often times, the work does not have an owner name or the name of the artist. After properly searching through catalogs, databases and any other sources, it may be a fruitless effort. In addition, you may have found that the artist died or the company no longer exists. In this case, it is best to go back to fair use, use an alternative work or alter your planned use of the work. In any case, it is better to be err on the side of caution and not use the work until permission has been obtained. Another option is to ensure that your use of the work would be considered fair use.
- Copyright owner is known but cannot be located.
This is the clear case that you know who the owner is but cannot find a way to contact that person or entity. After searching various listings, the Copyright Office records, and directories, you simply cannot find contact information for the copyright owner. In this case, as in the case above, it is recommended that you find an alternative work or use the work in a way that would be considered fair use.
- Copyright owner was contacted but there is no response.
You have a name and contact information but the copyright owner will simply not respond to your request. In this case, there is no choice but to abandon your efforts and seek an alternative.
If you have discovered that the work you want to use is an orphan work, there are a few possible solutions as were briefly mentioned above. For example, you can look to the fair use doctrine or replace the work with an alternative work. The primary point of obtaining permission to use a copyrighted work is to avoid infringing someone else's rights. Certainly, you should keep a paper record of your due diligence efforts. Though records will not excuse you from an infringement, it can help show that the infringement was innocent, which could reduce, or in some cases even eliminate, the amount of monetary damages available to the copyright owner. Certainly, you should conduct a reasonable amount of searching. At a minimum, you should conduct a search of the records of the U.S. Copyright Office and conduct a thorough Internet search. You should also use any well-known resources or references in your particular field. If you cannot clear the rights in a work, you should use a different work. Also, feel free to contact the Office of General Counsel at (480) 731-8878 for more guidance.
How do I get permission?
Once a copyright owner is located, you will need to contact the copyright owner and obtain written permission to use the works. You can initiate contact by email, telephone or letter. There are many types of licenses and permissions. It is important to remember that if you enter a license for use of a work, you are entering a binding contract with another party. The contract will bind you personally as only designated individuals have the authority to legally bind the District. If you enter a license, you will be bound by the terms of the license, even if the license restricts your rights more than the copyright laws. For example, a license may require you to use a certain percentage of a work or prohibit you from paraphrasing passages. For works of art, the licensor may require you to use only high-quality copies of the work (which they will often provide for a fee) and may further require specific credit lines or require you to get pre-approval of the reproduction quality of the work before you incorporate it into your project.
Be sure that the licensor warrants that it owns the rights it is granting you - or that it has the authority to act on the behalf of the rights holder.
Several other typical issues you will face include:
- Is the license exclusive? Unless you are paying a lot of money or entering a complex agreement, it will almost always be non-exclusive;
- What is the geographical extent of the license (e.g. North American rights, worldwide rights, U.S. rights, foreign rights, English language rights, foreign language rights);
- The owner will want to know the purpose of your project, particularly whether it is of a commercial or educational nature and the number of copies you will make;
- What is your project's medium and will you be allowed to re-use the work if you change the medium (e.g. from a strictly written format to a web site format);
- What fees are involved and are they a flat fee or are royalties and an advance payment required; and
- Is a credit line required and what is its exact wording and placement.
- Use of a work on a web site creates unique infringement concerns for the copyright owner. The owner may require you to protect the work from further copying by any number of means, including user names, passwords, watermarking or using software that prevents copying.
What written form should I use?
Many publishers, larger entities and institutions have their own license and permissions departments and can provide standard forms for your use. Many of their forms are available online. It will often speed up the permissions process to use the licensor's standard form, but be sure you read and understand what you are signing.
The Use Agreement section of these Copyright Guidelines gives basic, standard language you can use to draft your own permission form. This section also provides a request and use agreement checklist. Naturally, you will need to adapt the language to meet your situation. The sample agreement is provided for your general information and convenience and should not be construed as legal advice. If you have specific legal questions, you should contact the Office of General Counsel at (480) 731-8878.
Whether you use your own form or a standard form, be sure you have mechanisms in place to ensure compliance with the terms of the license. For example, if the agreement does not allow you to post copies of the work on a website, be certain neither you nor anyone in your group does so. Remember, even if you do not directly infringe on a person's copyrights, you could be liable for contributory infringement.
Page Updated 05/20/14