When Do I Need Permission To Use a Copyrighted Work?

Copyright law protects the rights of authors and creators in their works. It gives the owner exclusive rights to sell or distribute their creative work, make derivative works, perform or display the work in public, and to transfer ownership or grant a license to use the work. 

Copyright infringement is the unauthorized use of a copyrighted work. It includes plagiarism, selling copies of a work, and failing to attribute a work to its creator. In other words, infringement is using a copyrighted work in ways only the owner is allowed to use it, without the owner’s permission. 

There is one major exception to needing copyright permission: Fair use. But be warned: “Fair use gets into a murky gray area,” says William Samuels, an intellectual property attorney at Cole Frieman & Mallon in New York City. This article will cover fair use and when permission is not (necessarily) needed to use copyrighted works. For help protecting your creative work, reach out to an intellectual property lawyer.

Works in the Public Domain 

There are a couple of situations when you do not necessarily need permission to use copyrighted material. 

First, you don’t need copyright permission when works are in the public domain since such works are no longer copyrighted. Copyright protections do not last forever. For example, works by a single author published on or after January 1, 1978, get copyright protection for the author’s life plus 70 years. If an author published a book in 1990 and died in 1995, the copyright on the text would last until 2065. Copyright duration differs depending on when the work was published and the nature of the authorship. Once a work’s copyright has expired, it passes into the public domain. 

Fair Use Doctrine  

The other scenario in which you do not necessarily need permission to use a copyrighted work is when the fair use doctrine applies. The fair use doctrine is in U.S. Copyright Law (17 U.S.C. § 107). It explains the use of copyrighted material for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” In other words, the fair use doctrine aims to promote the civic and educational use of copyrighted materials in certain circumstances. 

Even though fair use is a “doctrine,” applying it is not always obvious. Courts will evaluate cases on an individual basis using the four factors laid out in the statute: 

What Is the Purpose and Character of the Use?

Is your intended use of the work of a commercial nature or for nonprofit educational purposes? Fair use is much less likely to cover commercial uses than noncommercial ones. Commercial purposes include selling or advertising with the work.

Additionally, the use is more likely covered if it’s a “transformative use,” meaning something was added to the original work in the new expression (such as commentary, criticism, or parody). 

What Is the Nature of the Copyrighted Work?

The fair use bar is higher for creative works such as a piece of music, a novel, poetry, or a painting. On the other hand, if the copyrighted work is scientific, philosophical, or historical, it’s more likely to be covered since material of this nature aims to further educational purposes. 

What Portion of the Work Are You Using?

How much of the work is used in relation to the copyrighted work as a whole? The entire work or some segment of it? For example, is an English class looking at a chapter of a book or the whole novel? 

What Is the Effect of the Use?

What effect will the use have on the potential market or value of the copyrighted work? If the use of the copyrighted work negatively impacts the owner’s ability to derive income from the work, it will be less likely to pass fair use.

“Even though someone using a copyrighted work for parody or educational purposes may be able to do so without a license or entering an agreement with the copyright owner, [I generally] advise clients to consider some type of agreement for use, regardless of what the plan is,” says Samuels. “You can use copyrighted works in these fair use kinds of ways. However, it’s important to be aware that, potentially, not all of that use is going to actually be deemed fair use when it comes to litigation.” 

When You Need Permission 

Samuels recommends getting permission from the copyright owner even if you believe your proposed use of a copyrighted work falls under fair use. If your use of a copyrighted work doesn’t fall under fair use, you will definitely need to get the creator’s permission to use it. 

Receiving permission can be straightforward. “Just reaching out to the copyright owner works,” says Samuels. “It doesn’t necessarily need to be in a formal letter. It can be any manner of connecting with the owner. [However], ideally, you would get that permission for use in writing.” Written permission will serve as evidence if any disputes arise.  

Here are some pointers for seeking permission to use a copyrighted work: 

• Figure out who created the work 
• If the copyright owner is different from the creator, identify who holds the copyright 
• Get the copyright holder’s contact information 
• Contact the copyright holder  
• Consider sending a formal copyright permissions letter in which you include information about the following: Yourself (and, if relevant, your organization), the copyrighted material you are seeking to use, and information on why, how, where, when, and how long you want to use the work. 

Find an Intellectual Property Attorney 

Visit the Super Lawyers directory to find an intellectual property lawyer in your area for legal help.