When you directly quote someone else’s work or include someone else's artwork, illustrations, or photos in your book, you must understand who owns the rights to these creations. This goes for a famous line from a poem or song lyric as well. In many cases, using this material without proper permissions will result in copyright infringement, which could result in a lawsuit.
In addition to copyright ownership, there are many other factors that will affect the need to request permission to use the material. These include how you plan to use it, the amount you plan to use, and whether the material falls under “fair use” or “public domain”.
First, let’s do a quick refresher on how copyright works. Copyright is the legal principle that’s intended to prevent your work from being copied and distributed by another party, and is one of the most important intellectual properties for creatives. Per the United States Copyright office, “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” You are not required to register the copyright for your work, but there are benefits to registering a copyright. It gives the owner the exclusive right to:
• reproduce the copyrighted work• prepare derivative works• distribute copies• display the work publicly (including social media)
Copyright also provides the owner the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations. Copyrights can be sold, licensed, transferred, and inherited. Works created on or after January 1, 1978, have a copyright term of life of the author, plus seventy years after the author’s death, under the current law.
So, when you want to directly quote someone else’s work or include someone else's artwork, illustrations, or photos in your book, it’s safest to assume the work is protected by copyright and you do not have the right to use it without proper permissions. Simply crediting the creator in your work is not enough.
Per the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” In other words, it permits a party to use a copyrighted work without the copyright owner's permission under specific conditions. Section 107 of the Copyright Act calls for consideration of the following four factors in evaluating a question of fair use:
1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Certain types of uses such as criticism, comment, news reporting, teaching, scholarship, and research are examples of activities that may qualify as fair use. Commercial use, such as in a book that is intended to be sold for profit, does not qualify.2. Nature of the copyrighted work: This is the degree to which the work that is used relates to the copyright’s purpose of encouraging creative expression. For example, using a quote from a more creative or imaginative work (such as a novel, movie, or song) is less likely to support fair use than using a factual work.3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely.4. Effect of the use upon the potential market for or value of the copyrighted work: This is whether the unlicensed use harms the existing or future market for the copyright owner’s original work.
When a court is reviewing a fair use question, they go through not only these four factors, but evaluate each case individually. There is no formula, predetermined percentage, or specific number of words, lines, pages, or copies that may be used without permission.
Per intellectual property attorney Greg Victoroff, it is only natural that today’s authors would find inspiration from writers such as Shakespeare, Lord Byron, and Mary Shelley. That’s why, under fair use, copyrighted materials can be used if an author is critiquing or commenting on a copyrighted work, or using it for scholarship research. Still, Victoroff advises authors to consult an intellectual property attorney. If you intend to use someone else’s creation in a book that will be sold for profit, it is most likely not fair use and you will need to obtain permission from the copyright owner…unless the creation is considered “public domain”.
The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. It’s important to understand that finding something on the internet does not automatically mean it is in the public domain. This goes for photos and images as well. You need to find the source of the material and check for a copyright notice.
There are four common ways that works arrive in the public domain:
• the copyright has expired• the copyright owner failed to follow copyright renewal rules• the copyright owner deliberately places it in the public domain, which is known as a “dedication”• copyright law does not protect the type of work – this includes names, the titles of books, movies, or songs, short phrases such as, “Make my day”, facts, ideas, or theories. These things are free for all to use without permission.
It’s important to note that in addition to quotes from books, quotes from television, film, and advertisements are all copyrightable, and using them without permission can lead to copyright infringement. For authors wanting to quote the Bible in their work, there are specific versions of the Bible that are in the public domain, which you can learn more about in this ALC blog post.
To recap, if you use someone else’s material
a) without permission,b) without being able to show fair use,c) without being able to show it is considered public domain,
it is likely copyright infringement.
Brands and companies are often protected by trademarks or service marks. Per the United States Patent and Trademark Office, “A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods, and a service mark identifies services”. Brands and companies don’t own the rights to particular words or phrases, but do own how they are used with their specific goods or services. Because brands and companies are protected in this way, authors need to be careful when using them in a book. The general rule is, if you plan to write neutrally and accurately about the brand or company, you may not run into any issues. If you plan to write in a way that could tarnish their reputation, it’s best to use a fictional name; otherwise, you may be setting yourself up to get sued. Either way, you should consider seeking permission from the brand or company, or not use the name.
It’s important to know that individuals are also protected from the unauthorized use of their name, likeness, or persona, including celebrities. Some celebrities have their name trademarked when using it to sell goods. If you use a celebrity name, likeness, or persona in your book without permission, you are at risk for trademark infringement, or, for violating what is called their “right of publicity”, meaning you’ve violated that individual’s right to control and profit from the commercial use of their name, likeness, or persona. In California, books are specifically excluded from right of publicity claims. This law differs by state however, so be sure to check your local laws. Some states consider books to be “expressive works” that are protected by the First Amendment if:
1) The use of the famous persona is artistically relevant to the work – is the presence critical to the story’s tone, setting, and plot?2) The use is not misleading as to who endorses the work – does the author suggest that the famous persona endorses or supports the work?
If it’s important that you use a celebrity’s name or persona, it’s safest to stick to the facts for that individual, where you are mentioning them in the context of accurate, historical information. If you include opinions, false information, or even embellishments that can tarnish their reputation, you are at risk for defamation. Even writing true information about someone else can qualify as an “invasion of privacy” if the information is not publicly known.
There is less legal risk when using historical figures in your writing. First, defamation and invasion of privacy apply only to living individuals, not the deceased. Right of publicity doesn’t typically come into play either, even though this right can be enforced for up to 100 years post mortem in some states. Generally, you aren’t required to seek permission from living family members or the estate of a deceased historical figure, but it’s a professional courtesy to let them know about the project. The family or estate might actually be able to provide valuable information or material related to the individual.
In summary, it’s best to assume you will need to acquire permissions to use any of the material discussed above, and then do your research to confirm the right contact and proper steps. If you have questions at any point in the process, we recommend consulting an intellectual property attorney.
ALC President Keith Ogorek suggests working on obtaining these permissions as soon as possible, as it can take a long time. You don't want the permissions to be the thing that delays your book's release timing. It’s also important to note that you may be charged a fee by some rights holders for the necessary permissions, so be sure to budget accordingly. For recommended steps in seeking these types of permissions along with a sample letter, you can visit Copyrightlaws.com.
ALC President Keith Ogorek suggests working on obtaining these permissions as soon as possible, as it can take a long time. You don't want the permissions to be the thing that delays your book's release timing. It’s also important to note that you may be charged a fee by some rights holders for the necessary permissions, so be sure to budget accordingly.
For recommended steps in seeking these types of permissions along with a sample letter, you can visit Copyrightlaws.com.
Photo Credit: LeoPatrizi via Getty Images Photo Credit: designer491 via Getty ImagesPhoto Credit: I going to make a greatest artwork as I can, by my head, my hand and by my mind via Getty ImagesPhoto Credit: Warchi via Getty Images
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This was very informative. Thank you!