Negotiating Text Permission and Fees

If you decide to directly quote, excerpt, or reproduce someone else’s work in your own, be it a book, blog, magazine article, or other, one must consider, for each use, whether it’s essential to seek explicit, legal permission from the work’s creator or owner. The most common legal use of copyrighted work is fair use. Fair use is a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.

Unfortunately, quoting or excerpting someone else’s work falls into one of the grayest areas of copyright law. There is no legal rule stipulating what quantity is appropriate to use without seeking permission from the owner or creator of the material. There is still no black-and-white rule. However, the greatest directive that you’ll find is “Ask explicit permission for everything beyond fair use.”
Obtaining permission to use text involves a four-step process:

1. You must clearly and specifically identify what material you want to use and how you want to use it.

Your first stage is to identify the material you want to use and the rights you will need.

Commercial Use: If you are seeking permission to use text on behalf of an advertising agency or a company selling a product or service, your use is more likely to be categorized as a commercial endorsement, which will trigger additional legal issues.

2. You must send a permission request letter to the publisher or rights holder.
Your permission request letter should give the details about the text you want to use, how you expect to use it, and the permission you want. There are two different types of request letters you can use:

• One simply informs the rights holder of your needs and expectations that you and the rights holder will later complete and sign a separate permission agreement.

• The other serves as both a request and a simple permission agreement for your use of the material. The copyright owner reviews the request and gives you permission by signing and returning the letter. This approach is recommended for simple requests to use (republish) text. The second type of letter serves as both a request and an agreement.

3. You and the publisher or rights holder must negotiate a permission fee, if any.
You’ll need to work out how much you’ll have to pay for the rights you’ve requested. The publishing industry does not have standard rates for using text. Some publishers use fixed rates for common permission circumstances and can furnish you with what is known as a “rate card” listing such fees. In other instances, the owner won’t be able to evaluate the fee until after reviewing your request.

4. You must get a signed permission agreement after sending the permission request letter.
Once the rights holder has agreed to grant permission and you’ve agreed on a fee, you need to complete and sign a written text permission agreement.

There are two ways to accomplish this: You can convert your permission request letter into a permission agreement (a “permission letter agreement”).You can draft and complete a detailed permission agreement that should do for most text-licensing situations (a “permissions agreement”).
Below is a sample agreement.

The Copyright Clearance Center (CCC) (www.copyright.com), has simplified the process of obtaining text permissions. If the work is part of the service’s online database, you can usually obtain permission within one or two days (sometimes immediately). The CCC represents over 10,000 print publishers.

The CCC’s online protocol is easier than the traditional system of finding a publisher, negotiating permission, and signing a written agreement. If a service does not rep a publisher the publisher’s works are not designated in the database, you can still use the service to inquire about the use of works on your behalf.

 
You can obtain permission for the following activities:

• Photocopying. This includes photocopy permissions for newspaper and magazine articles, books, journals, research reports, or other published documents.
• Email. CCC grants rights to email an online article or PDF.
• Electronic uses. CCC allows you to post digital content on your corporate website, intranet, and extranet.
• Printouts. CCC facilitates your ability to print out web-based and other digital content onto paper and overhead slides.
• Republication. CCC permits you to republish content in a newsletter, book, or journal.
• Digital rights. CCC grants rights to scan printed material into digital form when an electronic version is not readily available. To use the CCC’s service, visit the website and create an account (most likely you’ll want a pay-per-go account and not an annual subscription). Complete the registration, and you will be directed how to start using your pay-per-use account.