Summary: Avoiding publishing permissions when possible reduces author costs and can lower risks of project delays in journal article and book publishing projects. Categories of provisions include Fair Use, Right To Quote, Public Domain, and Creative Commons. Keeping permission provenance allows authors to simplify and plan the work of obtaining permissions.
Image Credit: Jane Friedman
- Is the material copyright issued outside of the United States?
- Will you quote more than a few sentences?
- Will it reduce the market value of the cited material?
If you answer 'no' to these, it's likely that your quote is Fair Use under Section 107 of the US copyright code.
Fair use covers quotes and paraphrases, especially those used for commentary & criticism in a scholarly or research work (even if such work is to be sold.) To violate fair use a work must additionally reproduce a substantial portion of the work ("the heart of the work"), or pose an economic threat to the cited work. If you cite a work tangentially, and if a work is noncommercial / if your work is not a direct commercial substitute of that work, it is not likely that copyright infringement proceedings can begin or succeed. (Note also that free permission not likely if a work is a substitute)
Invoking fair use allows you to make a strong argument that there is low risk to the publisher. It reduces time and costs in obtaining permissions; it also denies predatory authors the opportunity to demand money for usage that is otherwise fair (eg, asking for an exorbitant payment and sending the publisher a cease and desist letter.)
- Is the material copyrighted outside the United States?
- Is the quotation clearly marked and fully referenced?
- Is the resulting work an original work and not just a collection of quotations?
If the answer is 'Yes' to all these questions, it is likely that you have a right to quote the work under Article 10 of the Berne Convention. The right to quote is particularly important in European copyright matters.
However, there is a risk caused by the country-to-country variance in implementation of the Berne Convention; in particular the Fair Use doctrine provides more latitude in US copyright proceedings.
The advantages here are very similar to invoking Fair Use.
- Is the work in the Public Domain?
- Is the work protected by a permissive Creative Commons license?
If the answer is "yes" to either question, you may reproduce any amount of the work.
Creative commons licenses which prevent this are those containing the "Non-Commercial" (NC) or the "No Derivative Works" (ND) conditions. These are: BY-ND; BY-NC; BY-NC-SA; BY-NC-ND. All other licenses allow complete duplication.
Works are in the public domain when their copyright has expired, when their author explicitly dedicates them to the public domain, or when copyright law does not protect the work. In particular, US works published before 1923 are free to use, as are Facts, Theories, Laws, and US government works. For more details see Stanford's Public Domain Guide.
Invoking permissive Creative Commons or using Public Domain work eliminates any risk of copyright proceedings. Furnishing the publisher with proof of this status obviates the need to obtain author permission.
Clear and reviewable permission provenance allows your editor to quickly assess copyright risk, and lets you plan and pace your permission work.
Apart from keeping permission letters for works, this could be a simple spreadsheet that tracks:
- Author
- Title
- Type of reference (Quote, Paraphrase, Image, etc)
- Number of words quoted
- Do you need to obtain permissions?
- Who holds the copyright? (If necessary)
- What license covers the work? (If necessary)
- Have you have obtained permissions? (If necessary)
Reference tracking software like Zotero, Endnote, or Mendeley can help create the Author/Title columns of a provenance sheet.
- Jane Friedman: A Writer’s Guide to Permissions and Fair Use
- Jane Friedman: A Basic Guide to Getting Permissions + Sample Permissions Letter
- Writer's Relief: How And When To Get Permission To Use Quotes In Your Writing
- Richard Stim (Stanford University): Welcome To The Public Domain
- US Copyright Code: Section 107
- Berne Convention: Article 10
- Wikipedia: Fair Use
- Wikipedia: Paraphrasing of Copyrighted Materials
- Wikipedia: Right to Quote
- Wikipedia: Creative Commons license