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 quotes or extended passages from 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 nonfiction 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 this link to the publisher’s info on this volume.) To include every chapter’s material where the source was still under copyright, the authors had to pay for the permissions. 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). This 752-page reference book by the late Walter Martin and co-edited by Jill Martin Rische and Kurt Van Gorden has more than 3,000 citations in it. (Click to see a preview of the interior.) 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.
It is the responsibility of the author to secure the permissions and pay for any associated licensing fees. In both of the above projects, 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 nonfiction book.
First, if the material you are citing was published before 1928, it is in the public domain; then you have nothing to worry about (with some exceptions, see below). (This date will change each year as the copyright law protects material published within the last 95 years.)
If the material is newer than 1928, 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:
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- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- 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 the 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 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!”
In one class of mine, a student said, “I’m a professor at a university, and I have to get permission to use quotes in my handouts. It’s a school policy as the university is afraid of running afoul of copyright usage.” Another student in that same class suddenly declared, “Then that means my entire book has to be rewritten!” They had a look of abject shock as they realized the position they were in.
(An earlier version of this article was posted in December 2012.)
Fun Fridays – February 24, 2023
Steve, I feel a sort of hubris in approaching this, but I have had folks ask if they can use my sonnettary blog comments, or excerpts thereof.
Conversely, I always ask a blog author on whose blog I have commented for permission if I want to reuse my words.
Does a comment become property of the blog’s original author, or does the writer of the comment have an implied copyright…or are those words public domain if not expressly copyrighted?
It’s not that I want to copyright my words here. Anyone finds use for them, that’s great, have at it. That’s what they’re there for. (Though it’s cool to be asked, makes my day!)
(Even more importantly, if, say, these words have become your property, Steve, by my posting this comment, I don’t want to authorize their use when that ain’t within my purview…and I always wanted to use ain’t and purview in the same sentence.)
If each sentence were a dancing dollar,
and every word two singing bits,
don’t assume that it would follow
that I would have screaming fits
on your use of what I said
in sermons or a published work,
because we’ll both come out ahead,
and I don’t want to be the jerk
who stands on these as my possession,
neither sonnets nor a story;
this would feel to me transgression,
’cause what I write is for God’s glory
and value you find in my pages
are, for me, my workman’s wages.
Andrew,
Excellent question.
This can be a sticky-wicket in some circles. The copyright law is awfully clear that the creator of the content (you) owns the rights to the material.
All sites are supposed to have a “Terms and Conditions” section spelling out the legal details of using the site. Ours is a rather generic one created by a service to give us general language. It is found here: https://stevelaube.com/terms-and-conditions/
Basically is says that if you post here, we can publish it here. If that were not spelled out someone with nefarious intent could post a comment, then sue us for copyright infringement.
The Plagiarism Today website has a fantastic article on this issue here:
https://www.plagiarismtoday.com/2006/08/22/copyright-ownership-and-comments/
Steve, thanks for this very important post. It’s a subject that most (new) writers never think about until they have to.
Andrew, I left a comment with a question on your blog.
Sy, got it, and replied to your blog contact.
Great article, Steve! I host a music reaction series on YouTube, and what constitutes fair use in the digital age is a huge topic of debate and point of contention right now. I predict there will eventually be a lawsuit between a large media conglomerate and a fair-sized YouTube reactor/reviewer one day that will end with the SCOTUS more specifically defining some of the legal applications of “fair use” under U.S. copyright law. Don’t know what the implications of that will be for the publishing industry, but the situation in the digital music and video realm is untenable.
It may be quite some time before a case makes it as far as the Supreme Court. And even then it would only apply to copyright issues in the United States.
The issue is often a monetary one. If a song is played online (like YouTube) without permission it is being “performed” … and if that YouTube channel is monetized (meaning it gets paid for by advertising or sponsorship) then the music being performed is “earning money” and consequently the metrics of the conversation changes.
Here’s a scenario to consider. You’ve written and illustrated a children’s book. It has been published by you (self-published). But a YouTube channel has recorded someone reading your book aloud and the illustrations are being displayed as it is read. The YouTube channel has not requested permission. They just did it and it has now been viewed 1,000,000 times.
Is this “fair use”?
Should you be compensated? After all, it is your words and your illustrations.
With music you have a writer of the lyrics, the composer of the music, and a performer. They are three different entities.
The performer pays a license fee to record the song. That money goes to the owner of the copyright for the composition and separately for the lyrics.
See the problem with it being played for free on the Internet?
Your insightful comment sent me down a rabbit hole.
Read this article from Plagiarism Today about the problems with YouTube and copyright. (Over 4,000,000 copyright violation claims PER DAY. ???!!!???
https://www.plagiarismtoday.com/2021/12/14/we-need-to-rethink-youtube/
Excellent article, Steve! From first-hand experience, I can verify it’s spot-on. Thanks for sharing!
As for the scenario of someone posting a video featuring one person reading another’s book aloud with illustrations on screen, that’s a clear-cut case of copyright infringement. Would I personally want it taken down? I’m not sure.
I own about 50 music-related copyrights, including music, lyrics, and sound recordings, and, as we speak, an “illegal” posting of one of my songs sits free and clear on YouTube. First, I’m fairly certain the poster thought it was a “royalty-free” track, as they sourced it from a legal website that offers creative commons licenses, and I had allowed SOME free use of that song on the website. Second, the illicit posting has amassed over 50,000 views, which is far more than the song has garnered in its official form on any other mainstream platform. Third, although I earned no revenue directly from the unauthorized posting, my streams on other platforms spiked after the video dropped, generating revenue and exposure I wouldn’t have otherwise received. Therefore, I’ve taken no action against the poster, nor do I intend to, even if the poster monetizes the video.
With music, there are two broad categories of potential infringements: infringement of composition (music, lyrics, arrangement) and infringement of sound recordings. The poster in the above story infringed on both. If I were to record myself performing a non-public domain cover song (someone else’s composition) without obtaining a license, then post it to YouTube, I own the recording, but, since someone else owns the composition, I’ve technically infringed upon their copyright. In the past, copyright owners (or their content managers) were pretty strict about enforcing their composition ownership through YouTube: Someone posts a cover song without permission, the video containing the song gets deleted.
However, copyright owners realized they were actually losing money by doing this. If they allowed the video to remain up, composition owners could a) monetize the video and b) obtain more exposure for the song, which would prompt viewers to discover or revisit “sanctioned” versions of the song. Consequently, YouTube’s model has changed to a mutually beneficial one for both owner and “infringer.”
Today, if I were to post a cover song without a license, YouTube’s content ID algorithm would identify it as a cover song and, as long as the copyright holder has opted in, the video would become monetized, splitting the revenue between the composition owner and me, the recording owner. In practice, the option has become a cheap way for artists to essentially “license” songs after recording and releasing them instead of before, as well as a side revenue stream for composition owners and their content managers.
The type of YouTube content that the Plagiarism Today article is predominantly discussing (which is also the kind I’m currently producing) are reaction/review videos in which a reviewer watches/listens to a piece of someone else’s content on camera and critiques and comments on it during and after. As long as the reviewed content is short (e.g., a song), broken up in segments, and of lower quality than in its officially released form, most copyright managers are happy to release any claim under a “fair use rationale” submitted by the reviewer and allow the reviewer to collect revenue from the video. But is it really fair use in the U.S. if the entirety of the work is used and/or the content is monetized?
The closest scenario I can think of in the publishing industry would be a literary critic reviewing a poem. The literary critic is being paid by a publication to review a new, copyrighted Haiku that has taken the poetry world by storm. Can the reviewer legally review the Haiku–a very short work–if he re-publishes and reviews it line-by-line? If not, how is he expected to properly review it? If so, does his receiving compensation make a difference? Could the reviewer legally read the review containing the poem on camera and post it to YouTube? I don’t know!
This turned into a much lengthier response than I originally intended, but I’d be thrilled to hear more of your thoughts on the issue (maybe even as lengthier blog post! 😬). Love the blog, Steve. Thanks for continuing to post articles like this.
Since I’m not an attorney I won’t be revisiting the granular elements of this issue. And since I don’t work in the music industry it is less connected to what we are trying to accomplish here.
I had lunch with an intellectual property attorney in our city and we discussed many issues. Including the fact that their work was beginning to focus on virtual world copyright. If an online player in a game invents a specific type of shoe (inside the game) with certain powers and then sells that shoe inside the game, does the player then own the shoe design and if others copied it could they be sued for infringement? In a VIRTUAL game…online only. Which isn’t real. Or tangible. This attorney made the case that indeed ownership of that shoe belonged with its creator.
I now have a headache.
WOW! What a legal conundrum! Pass the Tylen–I mean, over-the-counter, non-aspirin pain reliever! 😉
It’s always good to check on things like this. When I started writing a spin off of the Wizard of Oz (which books ARE in the public domain) I found a website that talked about usage of things/items/names from the MOVIE. For example, I could not use “ruby slippers” which are solely in the movie. But I could use “silver shoes” which are in the book.
Steve, what about trademarked items? A friend shared an excerpt from his novel, which he’s going to be self-publishing, and he used Keurig and K-cup. I privately contacted him to say I thought he should check to see if he could use it. I remember learning from past workshops, trademarked words/items are a no-no. He said he learned as long as you weren’t bad-mouthing them, you could use them.
Is he correct? Thanks!
I am not an attorney, therefore my advice can only be used anecdotally.
If you can avoid using the Trademarked brand name, do so. (tissue vs. Kleenex) (headphone vs Beats) etc.
The problem is that “fair use” is still undefined legally. Would you like to become the test case and spend millions defending your use of Lululemon in your novel?
The International Trademark Association has this helpful guide (PDF) called “A Guide to Proper Trademark Use” (© International Trademark Association (INTA). Reprinted with kind permission.)
https://www.inta.org/wp-content/uploads/public-files/resources/consumer/2020_TMUseMediaInternetPublishing.pdf
Nope ~ no millions here to be spent. haha! Thanks for the PDF!
This issue has always been a concern for me. It’s difficult to research the origin and owner of some stuff. A critique partner with an MA advised me to delete “Even though the sun’s not shining doesn’t mean it’s gone away” because she thought the song concept was copyright. Later, when I was working on a BA in Creative Writing with a concentration in fiction (nonetheless), I hoped they would deal with this issue, but they didn’t. So thanks for addressing this.
I did a lot of research on a song I’d written based on a quote (explained below) and settled for this disclaimer:
“I Believe” was inspired by an inscription by an unknown author found on a cellar wall in Cologne, Germany. I found the original German text: “Ich glaube an die Sonne, sei es auch dunkel. Ich glaube an Gott, mag er auch schweigen.” I was able to translate, “I believe in the sun, even if it is dark. I believe in God, may he be silent.” I adapted the translation to rhyme and agree with the template of a song.
I also added nonprofit educational purposes to the disclaimer.
How do you handle something that you can’t trace down to it’s source?
A good article from Western Oregon University:
https://research.wou.edu/c.php?g=551289&p=3785422
Of course they are speaking to students and their research.
Your situation is a little different as an etching on a cellar wall is impossible to find the original writer. As the article indicates, do a “risk assessment” analysis. If there’s a chance the original owner will come after you, think hard about it.
Or contact an intellectual property attorney for legal advice.
Thanks! I read the article you recommended. Maybe God has closed this door. That’s a good thing.
Steve,
I understood the importance of researching to determine copyright issues that might come up while self-publishing my first book. I wrote a men’s study to help them in their walk as a husband an father but I used the lyrics to contemporary Christian songs men like Steven Curtis Chapman, Rich Mullins, etc. wrote telling of their own experiences.
I soon discovered that this meant I had to contact every person and association who had anything to do with the song lyrics I wanted to use. I didn’t realize that you could own 10.11% of a song. There are organizations that helped me like easysonglistening.com. I would add it can be a time consuming process as not all companies work on a writer’s time frame.
I was fortunate that two artists allowed me full use of the lyrics at no cost as long as I credited them. I thanked them by sending a copy once published.
Researching copyright and licensing rules is vital to give credit where due and financial compensation for the works produced.
Thanks for the reminder to me and heads up for others.
Steve, my co-author and I just had a paper published on Fortune 500 Companies use of press releases to spread information about COVID-19. To get around having to request permission use quotes, we paraphrased everything and then cited the sources using in-text citations. That was a much smaller headache and it gave our article more of a single voice.
Steve,
Good article on copyright laws. I never gave it much thought in the past. Do copyright laws work the same if the intent is to just share something online? Maybe a post on a social media site or the like. Does that fall under all of these same copyright requirements? I could see how I mught link something in an article and find out that the “linked” person, place or thing does not agree with what is said. Can you just mention that none of the links in the article are affiliated and/or may not be in agreement with the topic? Kind of like what you hear on the radio when some talk show is broadcasted. Pictures I can see as a copyright issue. But links may be a problem too. If you are quoting a scripture version that is copyrighted, how much of it can you copy without getting into trouble? Or do they only get upset if it ends up in a book for sale?
The topic of copyright and fair use is very interesting to me. So far, I haven’t had to worry about copyright issues for my fiction writing, but I have had to educate myself in it for my Etsy shop, where I make blankets and women’s accessories themed around books in the public domain. I’m super careful to be sure I know what I can and can’t do, because I would very much like to avoid getting sued by Disney or anyone else. (The Mouse WILL come for its intelectual property. As will Middle Earth Enterprises. And Nintendo. And… you get the point.) I’m glad that this education helps me feel more confident when I’m writing, too.