by Melissa Flamson,
Owner of With Permission
As a copyright permissions consultant, I am often asked what material requires permission. It is a complex issue, so I will share a few basic guidelines.
The first step is to determine whether a work is currently protected by copyright. Facts and statistics are not copyrightable; creative, original works that have been expressed in a “tangible medium of expression” are protected.
Permission is not needed for works that are in the public domain. Material created officially by the US federal government, for example, is in the public domain and may be used freely. Copyrighted works may also pass into the public domain after certain durations. There are intricate laws governing when this happens, both here in the United States and abroad. If you are distributing your publication outside of the United States, you will also need to take other countries’ laws into account. The biggest markers I recommend looking at initially are a) whether the work was first published over 95 years ago, and b) whether the author has been deceased for more than 70 years.
Works first published in the United States before 1978 that were published elsewhere more than 95 years ago are safely in the public domain within the US territories. Most durations in other countries (and in the United States starting in 1978) are based on the number of years since the author’s death, or PMA (post mortem auctoris). Most countries have durations of 50 or 70 years PMA. If a work was first published in the United States over 95 years ago and it is at least 70 years PMA, the work is likely to be within the public domain in most of the world. However, there are a few countries that have even longer protections. If you have significant distribution in one of these territories (including Côte d’Ivoire, Guatemala, Honduras, Jamaica, Mexico, Russia, St. Vincent and the Grenadines, Samoa, and Spain), or if the work was originally published outside of the United States, you should research their specific copyright laws. Works published less than 95 years ago may also be in the public domain in the United States, depending on when, where, and how they were published. Links one through three below are useful for determining copyright duration beyond these guidelines.
If you determine that a work is copyrighted, you should also evaluate whether it requires permission or can be used under fair use. The purpose of fair use is to allow freedom of expression through commentary, criticism, parody, or building upon the creations of others in a transformative way. The primary value of the use of the copyrighted material should be what you have added. If you use a freestanding quote as an epigraph, for example, the text following it needs to comment or expand upon it, adding value to the quote in a direct way, or it may be difficult to justify as fair use. Fair use is somewhat ambiguous, and legal objections are ultimately decided in a court of law, so I always recommend erring on the side of caution.
Here are the other key factors that the US Copyright Office lists as determining fair use. Your use does not need to meet all of them, but you want the balance of factors to weigh in your favor:
- “Purpose and character of the use”—Nonprofit educational or noncommercial uses weigh in favor of fair use, while commercial/for-profit uses weigh against it.
- “Nature of the copyrighted work”—Factual works weigh in favor of fair use, while creative works weigh against it. You should also be cautious when using unpublished works, which are less likely to qualify as fair use.
- “Amount and substantiality of the portion used in relation to the copyrighted work as a whole”—Using an insignificant percentage of the work weighs in favor of fair use, while using significant percentages or the heart (core) of the work weighs against it. Note that a poem, song, or essay is a full copyrighted work.
- “Effect of the use upon the potential market for or value of the copyrighted work”—Uses that do not harm the sales of the original work weigh in favor of fair use, while uses that do harm current or even future sales weigh against it.
It’s also important to be a good actor. Always include a full citation of the original source. If you are denigrating the original work, it is more likely that the original rights holder may bring suit, and it may reflect poorly in court.
As with the public domain issues above, keep in mind that other countries do not necessarily have the same fair use laws as the United States.
Here are some resources about copyright duration, the public domain, and fair use:
Note: I am a seasoned permissions specialist, but not a lawyer. These guidelines are only highlights and are not meant as legal advice.
Melissa Flamson is the owner of With Permission. She started her own business as a permissions freelancer in 2000, and currently leads a team of experienced permissions specialists from around the world. She is a mother of two and resides in Sacramento, California.