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Being Published Part 3: Permissions

This is the third in a series of posts inspired by my new book, This is Not a Book About Charles Darwin, which was published in February. In each post I'll try to shed light not only on the practicalities of what happens when your book is being published, but also the sometimes surprising ways that each stage of the writing life can affect you and your writing. The whole Being Published series is here.

I've had to get permissions for all my books, starting with various epigraphs and quotes in my fiction. Get Started in Writing Historical Fiction had a good hundred quotes in it, because how can you write about writing without quoting it? - but see below for the kind of quoting, called "Fair Dealing", which you don't need permission for. This is Not a Book About Charles Darwin, which is all right on the quote front - it's almost all Fair Dealing - nonetheless has lots of portraits and pictures in it, which do need permissions cleared. So here goes. As ever, we'll start with what this might mean for your creative work, and then move on to the practicalities. 

WHAT'S THIS "PERMISSIONS" THING ALL ABOUT?

When we say "permissions", what we mean is permission to use, in your published work, a part or the whole of a piece of writing or an image which has been created by someone else and is still in copyright. Copyright is all about intellectual ( as opposed to physical) property: your story is your intellectual property, as the words or pictures that you want to use are the property of their creators. The laws of intellectual property are therefore trying to strike a balance between two often opposing needs. The world would be a poorer place if any creator without a private income starved because they didn't get paid for their work - and most people's sense of social justice includes the idea that workers are entitled to be paid for their work. On the other hand, all art and craft takes place in a cultural context, and it would also be the poorer if artists couldn't draw on that cultural material, which will include art and craft created by other artists. 

So, whether your book or story uses song lyrics to evoke a night's clubbing or a romantic idyll; or you have quotations as epigraphs; or one character quotes Ian Fleming/McEwan to another; or your memoir includes photographs; or you've found a perfect picture for the cover of your self-published novel... you need to think about permissions:

  1. which you need - see below for more about this
  2. where to get them - because, generally speaking, the writer clears the permissions
  3. whether you'll be able to afford them - because, generally speaking, the writer pays for the permissions

Of those three, the first is the only one in your control: it's perfectly possible to write a book, and have it published, without needing to ask permission for anything - either because you use nothing, or because everything you use is thoroughly and provably out of copyright. But assuming that's not the case, then it's well worth understanding early what you might be letting yourself in for.

In the following do bear in mind that I'm not a lawyer, and that intellectual property law is complex and very specialist, and so the high street solicitor who did such a good job on your will is not the person to ask either. Instead, the Society of Authors (more book-oriented) or Writers' Guild (more script-oriented) or the US Author's Guild should be your first stop; your publisher should also be able to advise you.

You don't need permission to type an in-copyright quotation into your novel-in-progress, or to mess around with a cover-design using a lower-resolution image off the internet. But since you will need permission for the published thing, it's much easier to think about complying with the law while the project is still malleable and you can find creative ways round any difficulties. It's also asking for trouble - as in endless hassle and last-minute panic - not to keep a clear list, right from the start, of the quotation(s) or images you use, and where you found them.

Permissions are one of the first things your publisher will want to get on with, and so your editor will ask you about. That's partly because permissions can take ages: copyright holders can be hard to track down, and cost a fair bit, though surprisingly often they cost nothing. But what's really important is that

  1. in law, your publisher is liable for any breaches of copyright in your book, and can be sued. So
  2. your contract will include a clause where you indemnify the publisher against them being sued. i.e. if in your novel Andy quotes two lines of "Heart of Grass", without you getting permission, and Blondel sues for breach of copyright and wins, your publisher can come after you for both the damages and costs awarded to Blondel, and (as far as I know) their own costs.
  3. your publisher will therefore insist on you taking this issue seriously; I suggest making sure you send them a clear list of everything you've used, and how/where the permission must be obtained.

Welcome, in other words, to the real world of being an author: it's law, and it's business. But it's worth bearing in mind that a quotation might not be the best way to do the job you're hoping it does.

At the simplest level, remember that swathes of readers don't read epigraphs, just as they don't read chapter numbers, or dates or times in sub-headings, and even those who do read may only skim; I know this, because by default I'm one of them. If the epigraph from A Hard Day's Night is going to cost a lot, or that poet will take you days to track down, does it really add enough to the book to be worth it?

But storytelling, too, comes into it. It may or may not matter whether the reader recognises a line about what your Mum and Dad do to you - though if they don't some air may go out of the joke, and I explored here what's going on when readers don't get a reference. It may or may not matter to the story whether they know it's by Philip Larkin, let alone get a reference to Hull, or to libraries, unless you make it clear. And the making-clear needs to be un-clunky, for the sake of those who do know: author-splaining is a minor insult to the reader. But again, are the cost and the hassle of obtaining the permission, and the necessary 'splaining, worth it?

But at least with prose or a poem, in principle the words are sufficient unto themselves: if they express something you want expressed, better than you can, and make extra layers and connections, then maybe you do want them. That's far, far less true of song-lyrics, because they were written to be integrated with a tune, and when read, on their own, on the page, at most they can only supply half the effect. Even assuming your reader recognises the song, that doesn't mean the music will play in their head, or at least not without them stopping and working it out like a pub quiz question. There's an odd parallel here with brand-names of, say, cars or clothes: on the page a song-lyric, arguably, is a shorthand you hope is embodying all sorts of other things - both the physical properties (the tune, the snarl of a Harley-Davidson) and the cultural properties (the Heavy Metal world, the Establishmentness of Aquascutum). Not everyone can read the shorthand well enough to feel the embodied thing - and some can't read it at all.

Paraphrasing or referring to a quotation is fine. For example - "We talked about being teenagers, and I mentioned what your Mum and Dad do to you, even when they don't mean it" - would not land you in copyright trouble, and "She put 'Heart of Grass' on the turntable, and it struck me that this kind of love wasn't a gas at all" should be fine too.

THE PRACTICALITIES OF GETTING PERMISSIONS

For the Society of Authors' basic guide to copyright and permissions, click here: it's free for anyone to download. It outlines at least some of the differences in US law, and includes a model copyright permission letter, and lists of places to search for copyright owners. More detailed advice is available to members (so what do you mean, you've been offered a book contract or an agency agreement, and you're not a member...?) I therefore won't go into all the details here, just I'll just flag up some basic points and common misconceptions.

Basics: In the UK and the European Community, copyright lasts for 70 years from publication, or after the death of the author, whichever is later. Copyright applies to unpublished work too: for manuscripts, letters, diaries etc. it's basically still life-plus-70, but there are some fiddly little rules for authors who are already dead. US copyright law is different, and more complicated, so don't assume it's the same.

The fact that something in copyright has been reproduced on the internet, with or without permission, does not affect its copyright status: you will still need to get permission for your purposes. And in the UK at least, the idea of something "being in the public domain" doesn't have any legal standing worth hoping for. Either something is in copyright, or it isn't.

It's "the estate" of a dead author which holds the copyright for that last 70 years; the owners may be family, but the estate may be administered by a literary agent, or the author's publisher.

Copyright exists in the text or image, even if the physical object is owned by someone else. So the painting, photograph or portrait above your uncle's fireplace might make the perfect book cover, but unless when he bought it the artist specifically assigned reproduction rights to him (or to the sitter in the portrait) you will need the artist's permission to reproduce it. Same goes for letters and diaries: the recipient of the letter may own the physical object, but it's still the writer of the letter who must grant permission for it to be quoted. Note that if you're reproducing the actual image of the page, say, the publisher holds their own copyright, separately, in the specific arrangement of the text on the page in that edition.

You must ask permission to use any "substantial" extract: "Substantial" is as much about the importance of this chunk to the overall work, as it is about numbers of words, and is not defined in law. A couple of lines of a poem or song-lyric are certainly substantial, and the key sentences from a long book's argument might be too. If the context in which you want to use the quote doesn't come clearly under Fair Dealing, the only safe course is to ask permission for everything. Even if you don't think it's substantial your publisher will almost certainly refuse to risk it, since lawyers are far better paid than authors or publishers.

There is no copyright in facts or ideas, only in the form - the words and pictures, and I think graphs and grids - that the idea is embodied in. In a landmark case, two of the three authors of The Holy Blood and the Holy Grail sued Dan Brown, claiming that The DaVinci Code breached their copyright. No one denied that the novel drew on historical facts and deductions that the non-fiction book, among other books, laid out, but the Holy Blood authors lost the case; the judge explicitly said that copyright does not extend to giving an author of a book "exclusive property rights" over the "information, facts, ideas, theories and themes in it."  

Plagiarism may be a moral and ethical crime, but it is not a legal one: the issue is always about copyright. Riffing, satirising, morphing or messing about with someone else's work to create a new one may or may not be a breach of copyright: see Fair Dealing, further down. But pastiches, spinoffs and the like may also be a breach of an author's moral rights, (which are a legal right asserted on the copyright page) not to have their work treated derogatorily, and not to have other people's work attributed to them: it is possible for the author to sue if those rights are breached. Fan-fic, for example, has some very grey legal areas indeed.

There is no copyright in titles, or the names of shops, companies or places: you can write "We sat and watched A Hard Day's Night, then wandered over to Harrods", and whoever owns Lennon & McCartney's rights, or the shop, can't do a thing. The moment you quote a line from the film, or reproduce the shop's name in its trademarked visual form or (I think) its slogan, for example, you need permission. Companies can get very shirty, though, if you use their name in a context which suggests that they're unethical or bad in some other way. And, again, their pockets are deeper than yours. 

There is no copyright in characters, as they count as ideas... except when there is copyright in a character, which is more likely in the US. The Society of Authors' Nicola Solomon (who in a previous job advised the third author of Holy Blood, who didn't sue - good call!) explains more here. Nor is there copyright in ordinary names: "Harry Potter" is too short to be protected by copyright so is only trademarked in specific visual forms; apparently "Peter Rabbit" is trademarked too.

Translations: there is copyright in both the original text, and the translation, and you may have to seek two sets of permission. And an out-of-copyright work may still be in copyright. If you're lucky, the information will be on the copyright page of the book, but if you found the quote in something else, the translator may not be credited. That happened to me in The Mathematics of Love: the original French book has never been published in English, and my source was a line I'd found in a history of photography published decades ago by the BBC with the author un-credited. Balking at trying to extract an answer from Auntie Beeb, I got the French original and a big dictionary out of the library, used the published translation as a crib, and did my own; my reward was that I could make the quote fit my themes even better than the original had. Try Project Gutenberg for out-of-copyright translations of classic works.

Don't forget quotes in your narrative or dialogue: Having had all that drama with The Mathematics of Love's epigraph, I clean forgot that at one point I'd made my photographer Theo relay something that Robert Capa said, which was actually a line I borrowed from Capa's memoir Slightly Out of Focus. TMOL was about to go to print, so thank God for the internet: I found Capa's estate, which was owned by his brother Cornell Capa, and the administrator whizzed back a formal email overnight giving permission - and didn't even charge me, bless him. But, don't be like Emma, or you might end up with Emma's heart-rate that day...

Who does the legwork: Basically, clearing permissions is the author's job, and (see above) your contract promises your publisher you will do it. Having said that, your publisher may be willing to help, especially if the books you want to quote are published by another part of the same overall company. But this is one of many reasons to have been very practical and record-keep-y about all these things.

Who pays: If you're lucky, the publisher, but generally speaking the author. If you're not being offered an advance, then bargain hard for the publisher to pay, so that you're not out of pocket; at the very least they should put the money up front, and then take it out of your royalties. 

Who to ask: with many things, it should be obvious. If you get stuck, that Society of Authors download has a list of places to go looking for copyright holders.

  • For quoting from books, the publisher of the original edition is your first port of call; they probably have anthology and quotation rights by contract, so even if you know the author personally, they can't necessarily give you clearance. And note, too, that if you quote your own work in another book, you will still need permission from the publisher of that book. The publisher should have a standard setup for handling this - often a form on the website - and a scale of fees. If the book is no longer in print, as far as I know the rights will have reverted to the author. 
  • With journalism and photojournalism it's much more usual for the newspaper or magazine to routinely own the copyright for work it commissioned, so be prepared to track the mag down. It's is no longer published, its copyrights will have been assigned to some entity - but who? With luck, it'll be an existing company, or an archive.
  • For film and TV scripts, start with the production company, and start saving, for similar reasons to song-lyrics
  • For play texts, start with whoever owns the performing rights
  • Quoting song-lyrics is notoriously expensive: a very small amount is likely to count as "substantial", and with the destruction of other revenue streams, music companies are desperate to make money wherever they can. Blake Morrison has described how he was asked £500 to quote one line of "Jumpin' Jack Flash". Essentially, the best advice for pop lyrics is: Don't.
  • Pictures are complicated: Galleries and museums should be like publishers in having a well-organised system, but can in addition charge you fees for the cost of digitising the image, or lending it to you to be reproduced. What seems to be a grey area is that even reproducing a Rembrandt is not straightforward, since he is very out-of-copyright, but because they control the physical object, the museums seem to be able to control who and how the image is reproduced. However, Wikimedia Commons may be able to help: at least some of the uploaded files are decent resolution, and every page details what you are allowed do with the image (which varies), and the form the acknowledgement must take.

What to explain: The copyright owner probably will want to know

  • what the book is: fiction, non-fiction, academic, educational
  • what you want to quote from
  • exactly what and how many words you'll be quoting
  • who your publisher is
  • the territories it will be sold in
  • the approximate number of copies in the first edition

Fees: pieces of string come to mind, and there's nothing you can do about it. It may be nothing, or a flat fee, or may depend on all the variables above. For what it's worth, in A Secret Alchemy, which was to be published in all English Language territories, I wanted to quote two lines from a Noel Streatfeild novel; the publisher wanted £125. Editor friends say that the charge for the Streatfeild was on the high side, but I was skint, so I paraphrased it instead. On the other hand for Get Started in Writing Historical Fiction, with its educational purpose, Routledge asked nothing for a similar-length quote from Jerome de Groot's The Historical Novel. Some publishers have a standard length below which they don't charge.

Acknowledgements: you will have to acknowledge the copyright holder for giving you permission, and in the form of words they require. This is a different kind of acknowledgement from the small essays in life-writing that the authors' personal acknowledgements have become, and can be very small print, buried at the back of the book.

When you don't need permission: "fair dealing" and "fair use": Fair Dealing is the UK version, Fair Use is the slightly less restrictive US version. In the cause of not restricting the creative and practical needs of artists and scholars too much, there is a very specific, though slightly fuzzy-edged, set of rules about when you can quote from existing in-copyright texts for creative and/or educational purposes, without first getting permission. Again, there's more advice in the Society of Authors download, but to sketch out the Fair Dealing principles:

  • it only applies to work which has been already published with the consent of the copyright holder
  • you must use no more than is required for your specific purpose. The old definition of "for the purpose of criticism or review, or reporting current events" has been widened, at least a bit.
  • it must be genuinely used as a quotation, not just silently borrowed to save you having to make new words up
  • it must be properly acknowledged
  • the amount used must be reasonable and appropriate to your purpose
  • it should not affect the market for the original work, or substitute for it
  • in parody, caricature or pastiche, you must use only "limited, moderate" amounts, and it must not infringe the original author's moral rights

As an example: in Get Started in Writing Historical Fiction I did not have to get permission in advance to quote texts that I wanted to discuss or explain: I only had to make sure they were properly credited in the acknowledgements. But the Teach Yourself creative writing books also include boxed, standalone inspiring quotes about writing (the brief says "inspirational", but I'd rather cut my throat) in each chapter. For those, my editor did ask me to get specific clearance, as they were not obviously down in among the discussion - and I negotiated a budget, in case I needed to pay for the permissions.

And that's it. It probably sounds very complicated - and it can be, if what you're determined to do is very specific - but it's also about being a grown-up writer. And it's really not difficult to cope with the basics; what's more it's often possible - even sometimes creatively fruitful - to find workarounds for the rest. And, y'know, do as you would be done by. If you'd be furious that someone, without asking you, borrowed your words, or your garden produce, or your dog, and made or saved money out of them without asking you and, if you wanted it, paying you some of that money, then ... you work it out.

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