In my entertainment and media law firm practice, I often advise producers on the legalities of incorporating outside materials into their work. A typical question is whether permission is needed to quote from books, songs, and other creative works.
In this blog posting based on an excerpt from my book, The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks, and Other Rights for Entertainment and Media Productions, I highlight questions you should ask as you ponder whether “to quote, or not to quote”.
Is the Quote Copyright-Protected? Books, articles, songs, poems, and other textual works are protected by copyright law whether they are published or unpublished. You need permission to quote from them unless an exception to copyright protection applies. Note that some categories of text are not copyright-protected. These include extemporaneous speech that is not recorded, short phrases and slogans, and works that are in the public domain.
Is the Quote in the Public Domain? Copyright protection does not last forever. Once the copyright expires, the work falls into the public domain and you may quote or otherwise use it without permission. Determining the public domain status of a work gets tricky. As a result of numerous copyright law changes, different copyright durations apply depending upon the specific work's date of publication or date of creation. Listen to my One Minute How-To Interview on determining whether a work is in the public domain.
If the Quote is Copyright-Protected, Does Your Use Qualify as a Fair Use? Fair use allows you to use a reasonable portion of a copyrighted work without permission. Unfortunately, fair use has few bright-line rules. Contrary to myth, using fewer than 250 words does not place you in a fair use safe harbor. Instead, fair use is evaluated on a case-by-case basis. Your use is more likely to qualify as a fair use if the nature of your work is criticism, commentary, news, educational, or parody.
If You Need Permission, Whom Do You Ask? Finding whom to ask is sometimes the most difficult part of getting permission. The internet is a useful tool for identifying and locating copyright owners. For books, check the websites of the publisher and the author. For magazines and other periodicals, check the publication’s website or a copy of the publication itself. If you need permission to quote lyrics, you can find the music publishers for many popular songs by searching the online song databases of ascap, bmi, harryfox, and sesac.
How Do You Ask for Permission? There is no magic method of requesting permission. Some large institutional copyright owners may offer an online permission request form. If you must draft your own request, give complete information about the material you want to use and how you want to use it.
What Can You Do if the Copyright Owner Says No? Hopefully, the copyright owner will grant permission. However, the copyright owner might say no, demand a licensing fee that is too high, or just not respond at all. If that happens, you can try to tailor your use so that it qualifies as a fair use. However, as noted, fair use is subjective so this approach carries some risk. Sometimes the best approach is to find an alternative quote or to find a creative way to complete your work without directly using the quote.
What’s the Licensing Fee to Use a Quote? Licensing fees for quotes have no firm standards and are completely negotiable. The licensing fee to quote from a book or periodical might be $25 to $200+. The licensing fee to quote lyrics might be a few hundred dollars to $1,000+. Criteria that impacts the licensing fee includes how well-known the quote is and how you plan to use the quote.
