When Do I Need Permission To Use a Copyrighted Work?
In most cases, you’ll need copyright permissionBy Canaan Suitt, J.D. | Last updated on January 26, 2023
Use these links to jump to different sections:
- When You Do Not (Necessarily) Need Permission to Use a Copyrighted Work
- When You Need Permission
- Questions for an Intellectual Property Attorney
Copyright law is designed to protect the rights authors and creators have in their creative works.
To qualify for copyright protection, a work must be:
- An original work
- Fixed in a tangible medium
Copyright protections automatically arise when a work is published or fixed in a medium.
“For a creative work, which is protectable under copyright… the moment that pen is put to paper and the creative work is developed, that person is going to have copyright protection,” says New York intellectual property attorney William Samuels.
However, in order to “file a lawsuit in the case of a copyright infringement,” creators should register their work with the U.S. Copyright Office.
Copyright ownership gives exclusive rights to:
- Sell or distribute the work
- Create derivative works
- Perform or display the work in public
- Transfer ownership or grant a license for the work’s use
The unauthorized use of a copyrighted work is called copyright infringement. Infringement includes plagiarism, selling copies of a work, and failing to attribute a piece to its creator.
In other words, infringement is using a copyrighted work, in ways only the owner is authorized to use the work, without the owner’s permission.
There is one major exception to needing copyright permission: fair use. However, as Samuels says, “fair use gets into a murky gray area.”
This article will cover fair use and when permission is not (necessarily) needed to use copyrighted works.
When You Do Not (Necessarily) Need Permission to Use a Copyrighted Work
There are a couple of situations when you do not need permission to use copyrighted material.
Works in the Public Domain
First, you don’t need copyright permission when works are in the public domain, because public domain 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 life of the author plus 70 years. For example, an author published a book in 1990 and died in 1995. Copyright on the text would last until 2065.
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 found in the 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 referred to as a “doctrine,” applying it is not always obvious.
Instead, courts will evaluate cases on an individual basis using the four factors laid out in the statute:
- The purpose and character of the use. What is your intended use of the work? Is your use of the copyrighted work of a commercial nature or for nonprofit educational purposes? Commercial uses are much less likely to be covered by fair use than noncommercial ones. Commercial purposes include selling or advertising with the work. Additionally, the use is more likely to be 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).
- The nature of the copyrighted work. The fair use bar is higher for creative works such as a piece of music, a novel, poetry, a painting, etc. 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.
- Portion of the work. How much of the work is used in relation to the copyrighted work as a whole? Is the entire work being used or some segment of it? For example, is an English class looking at a chapter of a book, or the whole novel?
- 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,” Samuels “generally advises clients to consider some type of agreement for use regardless of what the plan is.”
“You can use copyrighted works in these fair use kinds of ways,” he says, “but 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 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, Samuels notes, “ideally, you would get that permission for use in writing.” Permission in writing will serve as evidence, if any disputes arise.
Here are some pointers for seeking permission:
- 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
- Why, how, where, when, and how long you want to use the work
Questions for an Intellectual Property Attorney
Many lawyers provide free case reviews for potential clients. These meetings let you get legal advice and decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- Do I need permission to use this copyrighted work?
- Does my use of the work fall under fair use?
- How do I get permission to use a copyrighted work?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for an intellectual property lawyer in the Super Lawyers directory for legal help.
Additional Intellectual Property articles
- What is Intellectual Property Law?
- Steps To Protecting Your Business’s Intellectual Property
- Should My Business Hire an Intellectual Property Lawyer?
- What To Do if Someone Steals Your Intellectual Property
- How Do You Protect Intellectual Property in a Business Transaction?
- How to Fight Overseas Cybersquatters
State Intellectual Property articles
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