The Cyberlaw Guide to Protest Art: Copyright Part 3 — Licensing and Getting Permission

This is the third Copyright section of the Cyberlaw Guide to Protest Art. It covers getting permission to use the work of others — how to identify a copyright owner and how to make a license request. To get an overview of the complete Guide, visit the Roadmap, or link to the other sections here:

  • Copyright Part 1: what copyright protects (and what it doesn’t) and how to deal with copyrighted works
  • Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
  • Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
  • Rights of privacy and publicity: legal rights of privacy and publicity, which are implicated when protest art features real people
  • Sharing and merchandising your work: licensing your work including with Creative Commons, using disclaimers, and making money

Getting Permission to Use the Work of Others

If you’re pretty sure the work you want to use is protected by copyright, and you’re not confident your use is fair, a great option is to ask for permission (a “license” to use the work). Often people will choose to get a license even when they have other options out of respect for the original creator or the desire to keep their risk to an absolute minimum. Getting permission can take time, so account for that in your project timeline.

How do I find out who owns the copyright?

First, look for a copyright notice (something like “© James Dean, 1955”) or just the author’s name. Keep in mind that this notice might appear on or near the work, but it could also show up in a separate place, especially in works where the credits are usually grouped together, like the end of a film or front matter of a book.

If you come up empty-handed at first, there are a couple of things to try. First, go up a level: who manages the space where you first encountered the work? Whether it’s a digital space like a website or a physical space like a museum or library, whoever’s in charge might be able to get you more information. Next, search for other places the work might appear to see if a copyright notice or name shows up there (for images, try Google’s Reverse Image Search).

NOTE: If in the course of looking for a copyright notice, you find the Creative Commons logo or a CC license, please refer to the Creative Commons section.

If that fails, search databases:

  • Use the U.S. Copyright Office Search by title or keyword (unfortunately, as of now the online search only goes back to 1978, so it’s not complete).
  • For music, search copyright collectives (e.g. ASCAP, BMI, SESAC).

NOTE: You can also use these strategies to double-check that an author you’ve identified by the means above is actually the copyright owner.

Once you identify the owner (or have a decent guess, or a list of possibilities), try to find an email or postal address — even a contact form on their website or a social media account will work.

How do I make a request?

Ask for and get permission in writing, so that you’ll have a record later. Email is fine — you don’t necessarily need to put your request on actual paper. If the copyright owner is someone you know, and email would feel over-formal, you can send a text message or a direct message over social media — just make sure to include all the necessary information and save a screenshot of the exchange.

NOTE: For non-exclusive licenses,¹ a written agreement is not required, but it sure will make your life easier if a piece goes viral unexpectedly and all of a sudden you’re trying to remember the details of what you did (ahem, Shepard Fairey…)

In your request for permission, be sure to include:

1. Your name and contact information

2. The work you want to use (be specific and include title, URL, date, and/or a detailed description), including explicitly whether you want to use the whole thing or just a part (and if the latter, which part)

3. Description of your plans:

  • Medium of your work and any other details you can share (title, overall length/size intended audience, etc.)
  • How the original work will be integrated into yours (one item in a collage of many black-and-white images from the event, clip appearing in the second half of the film, etc.)
  • How you’ll make your work public (number of copies, number of performances, website where image will be posted). If relevant, also consider adding how long you want to use the work (forever or just for one specific event?), and where you want to use it (if you’re putting it on the Internet, assume you’ll need worldwide rights)
  • Whether you will be charging for your work, and if so how much

CAUTION: Do not withhold information that the owner is likely to find relevant in order to get yourself a better deal (for example, if you’ll be giving away a digital image for free but will also be selling fine art prints, mention both uses). If you don’t tell the owner about a planned use, the license you end up with is unlikely to cover it.

4. If you are requesting a free license, explain why you don’t have the budget for a license fee

5. Consider specifying a way for the copyright owner to quickly and easily approve: e.g. “If you approve of this use, please reply to me@domain.com stating ‘I approve’ followed by your name”

Once you’ve sent your request, the waiting begins. If you don’t hear back, you can follow up. Many times — especially with older works — it turns out the person you first identified does not hold the copyright. Don’t get discouraged! See if they have ideas for who else to try, or repeat the research process on your own and send your message to the next most-likely candidate.

If you find the owner and get a no, consider your other options: you can still make a fair use if you’ve been turned down for a license, but you’re on notice that the copyright owner might object to your plans.

If you get a yes, do your touchdown dance (no penalties for excessive celebration here) and then stop for a second. Make a file (digital or physical) for the license. You’ve gone to all this trouble: make sure you can prove it later, should it come to that. Drop in any notes you have on your research or process; a copy of your request; any negotiations or other correspondence you have with the copyright owner or others; a copy of the license (whether it’s a screenshot of a text message that says “OK by me” or a formal contract); and records of any payments you made. Put the file somewhere safe where you’ll be able to retrieve it easily.

Read More!

  • Roadmap: an overview of the complete Guide
  • Copyright Part 1: what copyright protects (and what it doesn’t) and how to deal with copyrighted works
  • Copyright Part 2: the law of fair use — what it is, how it’s determined, and the risks of fair use
  • Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
  • Rights of privacy and publicity: legal rights of privacy and publicity, which are implicated when protest art features real people
  • Sharing and merchandising your work: licensing your work including with Creative Commons, using disclaimers, and making money

[1] An “exclusive” license in copyright is comparable to a transfer of ownership: it gives the licensee all of the rights that the owner would otherwise control. After entering into an exclusive license, the owner cannot license the work to anyone else during the copyright term. A “non-exclusive” license is anything short of that: the licensee gets permission to use the work for some purpose(s), but the owner retains the right to license it to others as well. As we note above, non-exclusive licenses do not have to be in writing, but the Copyright Act requires a written agreement for an exclusive license. If you don’t have a written contract, the license isn’t valid.

The information in this guide is intended for background educational purposes and its authors are not your lawyers. For more information, please click here.

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