Fair use can be tricky to navigate because the legal benchmarks for this exemption are intentionally vague. You’ll never actually know if your use of copyrighted material is considered fair use unless a judge decides (which usually means you’ve been sued).
If you’ve completed a fair use analysis, either using a tool like Purdue’s or through our own analysis of the four factors, and determined that your use of copyright-protected works may not be considered fair use and have found no workable alternatives, the next step is to request permission of use from the copyright holder. Keep in mind that the copyright holder may not be the original creator of the work as the bundle of rights associated with copyright can be transferred in part or in their entirety. Remember too that there isn’t a standardized international copyright law and individual countries have their own domestic copyright laws. This means that some uses while considered fair in the US aren’t in fair use in France or elsewhere. What is in the public domain in the US may not be so in Canada, and so on.
Requesting permissions can seem like a daunting task, there are a few tips and tricks that could make the whole process easier.
Begin Early.
It is recommended that when requesting permission, you give yourself 6-10 weeks. The permissions process could include a lot of back-and-forth communication to negotiate the use and any associated fees.
Create a Permissions Spreadsheet.
Before you begin it is useful to create a template for permission requests, especially if you have many works that you are seeking permission to use. Uses could be for research purposes, publication, even teaching in some cases. The template could include fields such as name of the copyright holder; contact information such as email, physical address, phone number; nature of your request; date of request; date of response; and a detailed description of the response.
Often, permission grants specific uses so it is important to keep track of precisely what uses are allowed. The permission to disseminate is very different from permission to adapt or translate. Be sure you know what type of permission you are requesting and what you have been granted.
Contact the Copyright Clearance Center.
If it is unclear who owns the copyright for a specific work, there is a chance that the work was registered. If so, the Copyright Clearance Center should have a record. The information received from this agency is not permission, but a means of acquiring permission. Like these blog posts, it’s for informational purposes only. You, as the researcher/educator, are responsible for obtaining permission to use a copyright-protected work.
Write to the Copyright Holder.
When writing to the copyright holder, it is important to be as specific as possible. Let them know precisely what you intend to do with their work and why. Identify the rights that are needed. The bundle of rights include the right to reproduce, distribute, create derivative works or modify, and in relation to certain works, publicly perform or display a work.
Writing is the best way to ensure that both parties have a clear understanding of the permissions agreement and limits the chance of a dispute. Keep a record of your correspondence and link it to the permissions spreadsheet, where you’ve been keeping track of the work you’d like to use.
Remember: a good-faith effort to contact and request permission that doesn’t receive a response does not mean that you are able to use a copyright-protected work or that you’ll be free from the courtroom. If no response is received, try another work.