Here’s a situation many indie authors have experienced: You’re writing a novel that includes a bar scene in which a certain sad song plays on the jukebox, and to add atmosphere, you decide to quote the song lyrics.
Not so fast.
If the rights holder of that song discovers that her work is being used without permission, it could mean anything from a cease-and-desist letter to a lawsuit.
“Writers should assume they need permission—called a license—to use any content created by others whether it’s text, images, or music,” says Helen Sedwick, an attorney and author of Self-Publisher’s Legal Handbook. “Merely giving credit to the original creator is not enough.”
Sedwick lays out three basic steps for obtaining permission:
- Identify Who Owns the Copyright. This is likely to be a publishing company rather than an artist. But identifying the copyright holder can get tricky if the work is older and has changed hands between rights holders. Indie authors could consider securing a professional copyright researcher to track down the rightful owner. For song lyrics, Hal Leonard Corporation or Alfred Music are good places to start, as well as the online databases for ASCAP, BMI or SESAC. Stock image companies like Getty Images control the licenses to tens of millions of photographs and illustrations. And for text, authors can look at the Copyright Clearance Center, IPR Licensing, and the U.S. Copyright Office.
- Determine What Permission Is Needed. For indie authors this could mean permission for print, e-book, audio, or, more likely, all three.
- Obtain the Permission. This involves sending a permissions letter or email to the rights holder, outlining what portion of their work you are seeking to use. Self-publishing expert Jane Friedman offers this template for permissions letters.
License fees could range from zero to thousands of dollars—or the request could be met with an outright refusal—but, according to Sedwick, license fees are usually “surprisingly inexpensive,” running around $20 to $100 per song or image, and less for stock art.
“It’s going to depend on the content, your project, the context, and how many copies you expect to sell,” adds attorney Paul Rapp. “I’ve seen licenses granted to self-published authors that are allowed for 500 copies, at which point the author is supposed to go back and extend the license.”
Indie authors should also be sure to create a paper trail in their pursuit of permissions, saving every email and correspondence. Should a rights holder take issue with the use of their work, demonstrating a good-faith effort to secure permission can reduce potential damages that might be collected in court.
There is plenty of content that is not protected by copyright. This includes anything in the public domain—works that were first published before 1923, or works created by a government employee. Sedwick gives the example of Dorothea Lang’s famous photos of the Great Depression, which fall into the public domain because they were taken for the Works Progress Administration.
Then there is fair use, which gives authors the right to use work for the purposes of education, commentary, parody, or criticism. However this can be tough to pin down, since what determines fair use depends on four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the work of the whole, and the effect on the market.
Attorney Howard Zaharoff offers a helpful and in-depth look at the nuances of fair use for writers, but because it can vary from case to case, Sedwick recommends that authors consult an attorney.
“Recently, a writer asked me if she could include in her memoir love letters sent to her by a former boyfriend,” Sedwick says as an example. “I explained that while she owned the physical letters, her ex owned the words, and she should not reuse them without his permission.”