Permissions and Your Publisher

Anyone who has signed—or considered signing—a publishing contract has probably come one or more clauses about obtaining permission for the use of other people’s work. These are pretty standard publishing contract provisions, and I’ve written about permissions in this column previously, largely with respect to how to obtain permissions to use other people’s photographs and artwork.

As I’ve had several questions about permissions lately, and, in particular, how permissions clauses in publishing contracts operate in practice, I thought it would be worth setting out some basics. Of course, my usual disclaimer applies: nothing in this column is intended as formal legal advice and if you are facing a legal question about permissions it may be worth consulting an agent, attorney, or other expert.

Important issues to consider when entering into a publishing contract for a project where you intend to copy/quote other people’s work is to think about:

  • what work you want to use (text, images, art, photographs);
  • who holds the copyright (if anyone) in that work; and,
  • how difficult it would be to obtain/afford permission from the copyright holder(s) for your proposed use.

Bear in mind that more than one person can hold copyright in the same work: for example, co-authors of a book or song lyric you want to quote may jointly hold copyright. Even copyrights in images and photographs can be jointly held if the image in question is the product of a collaboration between two or more creators. It is important to obtain permission from all the copyright holders if you want to use a copyrighted work in your own project.

I should also note that I’m confining my discussion here to situations where permission is required, either because your proposed use of the work is not a fair use, or where the publisher insists on a record of permission being granted regardless of whether the use is a fair use or not. If you’re interested in learning more about fair use, I’ve written about it here.

Publishers tend to be risk averse and frequently want to ask you to obtain permission for most copyrighted material you plan to re-use in your own work. As noted above, there may be several clauses in your contract about permissions, one of which is likely to be in the “representations and warranties” section: you will be promising the publisher that your work doesn’t infringe anyone else’s copyright and that, where other people’s material is used, you have obtained permission.

The contract will probably also specify that you, the author, are responsible for securing and paying for permissions. It’s often a good idea when negotiating the publishing contract to make sure that the publisher has a permissions form you can use so you know exactly what they require in terms of permission: for example, if the publisher’s print run is likely to be more than 10,000 copies, your permission (or license) has to cover a print run of that size. If, say, you want to use someone else’s photograph in your work, and the publisher intends it to be a full color reproduction of the photograph in a particular size, you need to ensure that the permission allows full color reproductions in that size. You also want to ensure that the permission doesn’t limit the time period of the license for a term that is less than the time the publisher plans to sell your book. (In that case, it may be necessary to renew the license at some point post-publication.)

The other question that comes up with respect to obtaining permissions is cost. Sometimes a copyright holder will give you a license to use their work for free, but usually there is a fee attached, and fees can range from very minimal to pretty exorbitant depending on the circumstances. If you are using a lot of, say, photographs or quotes from other people’s work and the permissions costs are likely to be significant, you might want to try negotiating a “permissions budget” with the publisher so they will assist in the cost of obtaining permissions up to a certain amount. If you know you have a project that relies pretty heavily on permissions to re-use others’ work, you may want to discuss a permissions budget upfront with your publisher before it becomes an issue.

Other publishing contract clauses may state that where permission to reproduce another’s work cannot be obtained, the publisher can decide to either remove that material from the book or, in circumstances where the material in question is integral to the project, the publisher might have the right terminate your contract. These are not common situations, but they can arise so it is worth looking out for these clauses in your publishing contract and making sure you understand them, including what happens to, say, your advance if your publisher terminates the contract for failure to obtain necessary permissions.

The legal stuff, particularly with respect to rights in other people’s work, can be scary and confusing, but if a publisher does want to publish your book, it is worth making sure that you’re on the same page about permissions and costs. Where permissions can’t be obtained for whatever reason, it may be possible to insert something from the public domain in lieu of the copyrighted material, or to claim fair use. But it’s always a good idea to have the permissions discussions early in the negotiating process to avoid misunderstandings or problems down the line.