Dec

3

2012

The Cost of Permissions vs. Fair Use

by Steve Laube

Every book contract has a clause that reads something along these lines:

If permission from others is required for publication of any material contained in the Work or for exercise of any of the rights conferred by this Agreement, Author shall obtain such permissions at Author’s expense, in a form acceptable to Publisher, and shall deliver such permissions to the Publisher as part of the complete manuscript of the Work. Permissions shall cover all territories, rights and editions covered by this Agreement.

In other words, if you use someone else’s book you must get permission or a license and cover the cost of that license. Be sure to consult with your agent or your publisher when securing the license to make sure it fully covers your project. Some places will charge for the first x number of copies and then require that you pay again if you sell more.

There are some projects where the permissions and licensing are a bit more complicated, especially with certain non-fiction books. For example, our clients Khaldoun Sweis and Chad Meister created Christian Apologetics: An Anthology of Primary Sources (Zondervan, 2012). This 560 page book compiles selections from over fifty primary sources that address various challenges in the history of Christian apologetics. The compilation includes a wide range from Saint Augustine to Saint Teresa of Avila and Blaise Pascal, to more recent and present day apologists such as C. S. Lewis, Alvin Plantinga, William Lane Craig (our client), and Richard Swinburne. (Click here for a sample chapter  PDF and the Table of Contents.) To include every chapter’s material where the source was still under copyright the authors had to pay for the permission. They used the advance monies received from the publisher to secure those licenses.

Another example is our client’s project The Kingdom of the Occult (Thomas Nelson, 2008). (Click here for a sample of this work.) This 752 page reference book by the late Walter Martin and co-edited by Jill Martin Rische and Kurt Van Gorden has over 3,000 citations in it. When some of the citations are collected they comprise a good portion of the original source material. So they had to secure the permissions and pay for the licenses to use that source material in their book.

With our agency’s help both sets of clients used a freelance permissions service that managed this complex process. And in both cases the authors paid for everything out of their advance money.

Fair Use

You might complain and say, “But I’m just quoting something. Isn’t that fair use? Which means I don’t have to pay for it!” Examples of this could be the epigram you place at the opening of each chapter of your novel. Or a paragraph you used to illustrate a point you are trying to make in your non-fiction book.

First, if the material you are citing was published before 1923 it is in the public domain then you have nothing to worry about (with some exceptions, see below).

If the material is newer than 1923 use Section 107 of the U.S. Copyright code which describes four elements that come into play in figuring out whether your use of the material is fair.

    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    4. The effect of the use upon the potential market for, or value of, the copyrighted work

From the www.copyright.gov website:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Thus your quotes in your book are probably fine. But check with your publisher BEFORE you start your contracted project to determine what their in-house policy might be.

The Gatt Act of 1994 Changed the Rules for Some Properties

In 1994 the Gatt Act was signed into law. This restored the copyright to certain properties that had been originally published outside the U.S. but had been printed and sold in the U.S. as if they were public domain. There was a loophole in the copyright law that allowed for a publisher to physically print editions in the U.S. and not pay royalties to the author whose original work was published in another country like Great Britain.

In Christian publishing the example was the bestselling Vine’s Expository Dictionary of New Testament Words. The copyright was restored to the estate called the W. E. Vine Copyright Ltd. in Bath, England and thus a number of U.S. publishers had to discontinue their publication of that work (including Bethany House Publishers for whom I worked at the time). Shortly thereafter Thomas Nelson Publishers acquired the U.S. license to be the exclusive publisher of that book. Nelson then added the Old Testament work of Merrill F. Unger and William White, Jr. to create the Vine’s Expository Dictionary of Old and New Testament Words which is still in print.

Other significant works that had their copyrights restored under the Gatt Act include:

  • Works by J.R.R. Tolkien, including the Lord of the Rings trilogy. (It’s true! Here is an article that spells out the history of its publication and the resorted copyright issue. In January 2012 the Supreme court affirmed The Gatt Act provisions.)
  • Some works by Doris Lessing, including A Proper Marriage and Martha Quest. (She was awarded the Nobel Prize for Literature in 2007.)
  • Three of Astrid Lindgren’s Pippi Longstocking books. (a fourth was not restored.)
  • Several works by H.G. Wells, including A Short History of the World.
  • Hundreds of paintings by Picasso, including “Guernica” and his portraits of Dora Maar and Gertrude Stein.
  • Alfred Hitchcock’s movie “The Man Who Knew Too Much” (1934 version).
  • Works by composers such as Prokofiev’s “Peter and the Wolf,” Stravinsky’s “Soldier’s Tale,” Rachmaninoff’s “Symphonic Dances,” and Shostakovich’s “Tenth Symphony.”

Conclusion

This whole discussion may seem tedious and irrelevant, but it cuts to the heart of ownership of intellectual property and whether or not compensation should be required for particular uses. I see a number of eyes glaze over whenever I speak on these topics…until the light bulbs go off and the writers realize that they may be guilty of misuse of material in their work. In class situations hands begin to pop up and very specific questions are asked. There may come a day where this topic will roll onto your desk. At least you won’t be able to say, “No one ever told me about this!”

6 Responses to “The Cost of Permissions vs. Fair Use”

  1. Diana Harkness December 3, 2012 at 5:46 am #

    Thank you for posting this. I first ran into copyright law when someone used my images without my permission. It was a tangential area of exploration for me in law school, and now that I have turned writer, it has come to the fore again. I did not know about the Gatt Att, but my entire view of copyright law can be stated thus: Every author should be compensated for their work, just as the Bible states that every laborer is worthy of their hire. BTW, here’s the cite for the text of Gatt v. Holder for anyone else who might be interested in reading it. http://www.supremecourt.gov/opinions/11pdf/10-545.pdf

  2. Jennifer Dyer December 3, 2012 at 6:15 am #

    Thanks for the detailed article, Steve. Yet another reason writers are blessed when surrounded by agents and editors. Who could possibly keep up with all this on their own?

  3. Peter James December 3, 2012 at 6:54 am #

    Thanks for the heads up!

  4. mary k johnson December 3, 2012 at 11:10 am #

    As Dianna points out here, we may also at some point be on the other side of the desk and appreciate the copyright laws, too. It’s partly just a case of “do unto others,” though most of us do grit our teeth a little.

  5. Meghan Carver December 3, 2012 at 11:12 am #

    I’ll admit my eyes glazed over, and I graduated law school! Another reason to have an agent. Thanks for your time and effort in writing such a detailed post.

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