Joy Butler is an entertainment attorney I met at a networking brunch. (Yes, another brunch, organized by the same group where I met Marty Figley, last week’s “guest in progress.” People interested in getting out of the house and meeting all these fascinating people should look into joining the Washington chapter of WNBA [Women's National Book Association]: there will be another brunch this fall!)
Anyway, Joy had brought along copy of her new book, The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Media and Entertainment Productions. I was especially interested to talk with her because in my class at the Writer’s Center, we recently had a discussion about getting permissions for various new world items like the phrasing off a google search or an amazon reader review. Joy was kind enough to offer her off-the-cuff opinion: google search, no copyright; amazon reader review, copyrighted.
It’s important for writers to be aware that when they quote song lyrics, poems, excerpts from other books, and other matter in their own work, they may need to get permission to do so. If I’m not mistaken, even the “Happy Birthday” song is still under copyright! (Check it out—in a book, you’ll read, “They sang as she blew out candles,” and in a movie, they’ll cut to a scene of the candles without the singing. But you rarely see people singing those exact lyrics that I don't dare write here lest I encounter legal troubles...)
I ran into problems with my own novel, A Year and a Day, when I wanted to quote from the play Our Town, by Thornton Wilder, and the estate wouldn’t allow it. Ugh. I had to rewrite the chapter in such a way that I didn’t use any of the lines from the play…even though my main character was playing Emily. So, my standard advice to writers is to be aware of copyright issues…and be wary of using other material in your own work unless you really, really have to.
Here’s an excerpt from Joy’s book, The Permission Seeker’s Guide Through the Legal Jungle, to help educate us on what questions we should consider before idly sticking those Rolling Stones lyrics into our short story:
Every media producer eventually faces questions concerning the permissible use of other people’s material. The material might be a quote, real-life event, photograph, celebrity name, or other element protected by copyright or similar laws. These are rights clearance issues and no media producer – whether his/her title be writer, filmmaker, musician, visual artist, website developer, or creative guru - is immune from them.
As used in the book, the term “production” encompasses books, newspapers, magazines, films, posters, paintings, CDs, websites, fine art, advertisements, and a host of other media through which people communicate and express themselves. What follows is an excerpt from the book’s discussion of determining if you need permission and evaluating the risks of not having permission.
For each item incorporated into your production, you should determine with which category of right you are dealing. It might be copyright, trademark, privacy, or other right. Often the same material triggers rights in several areas. The Clearance Checklist in Chapter 2 along with its references to applicable sections of this book provides initial guidance to help you identify the rights issues you must address.
Next, assess whether your contemplated use of the item requires permission. Several chapters of Part Two include a discussion of the circumstances in which permission may not be required for certain types of uses. However, remember that rights clearance issues are fact specific. No reference book can address the nuances of every rights situation you may encounter. If you are in doubt about the need for permission, consult an attorney experienced in rights clearance issues.
There may be legal justification for using someone’s material without permission. Realize that there is always some level of risk when you use someone’s proprietary material without permission. While the risk may sometimes be minimal, it is never zero. It is up to you to decide whether or not you can and want to accept the risk.
An attorney who reviews your production can offer an assessment of whether your use requires permission. However, in many cases, the lawyer’s opinion is only a risk analysis. It is not a guarantee. No attorney can assure you that an unauthorized use of material will not trigger legal action from the rights owner. An attorney can only evaluate the likelihood of a lawsuit and the likelihood of your winning the case in the event a rights owner sues you.
Before proceeding without permission, ask yourself some common sense questions:
Would your use upset the typical rights owner? This is a reality check. Put yourself into the shoes of the rights owner. Would you be angry and want to take legal action if someone used your material without your permission in the way you want to use the rights owner’s material? If your answer is yes, it is likely the rights owner whose material you wish to use will respond in the same way.
Has the rights owner previously objected to similar uses of material? It is a good bet that rights owners who have been aggressive in protecting their rights in the past will continue to be aggressive in protecting their rights in the future.
Does the rights owner have the resources and knowledge to pursue an action against you - even if the action would be without merit? A well-established company with an in-house legal department can more easily make a fuss about your production than can an individual with more limited resources. Nevertheless, do not completely dismiss the cash-strapped smaller rights owner. If his claim is legitimate and offers the possibility of having the losing side pay attorneys’ fees, he can probably find an attorney to assist him on a contingency basis. See Section 3.1.3 for a discussion of right to attorneys’ fees in a copyright infringement lawsuit.
How much exposure will your production receive? Is your production a newsletter going to a hundred club members, is it a CD distributed to a few thousand, or is it a television program to be nationally televised? It makes a difference. The more exposure your production receives, the more likely it is that your unauthorized use of material will come to the attention of and spark an objection from the rights owner.
Will your unauthorized use of material expose other people to risk? Rights owners filing lawsuits typically sue not only the producer but also the people and organizations involved in distributing the production to the public. Potential targets include authors, publishers, record labels, advertising companies, broadcasters, and distributors. Some of these people and organizations may be your clients or people with whom you wish to develop extended business relationships. Dragging others into your rights clearance problems is not good for business. It can also be expensive. Distribution and other agreements include indemnification clauses in which you agree to reimburse the distributor for any losses it may suffer as a result of any rights violations in your production.
Is there anyone involved in your production who has ample resources? People or organizations who have – or who are perceived to have – significant amounts of money make attractive targets for lawsuits. Even if you are cash poor, your distributor may not be.
Will you ever need anything from this rights owner? Relationships are important in the media industry. Will you need to return to the same rights owner to request rights for a future production? If yes, using the rights owner’s work without authorization – even if he takes no formal action against you – can sour your future negotiations for rights you may need from that owner at a later date. ~~Joy R. Butler
Joy R. Butler is an entertainment, intellectual property and business attorney . In her entertainment practice, she regularly advises clients on the permissible use of copyrighted and other protected materials. To learn more about Ms. Butler's practice, visit http://www.joybutler.com/
About the Book: The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions. Authored by Joy R. Butler, Published by Sashay Communications, ISBN: 978-0-9672940-1-8, 408 pages, paperback. Available at bookstores and amazon.com and from the publisher via the website http://www.guidethroughthelegaljungle.com/ or via toll-free order at 877-995-8645.
Copyright © 2007 by Joy R. Butler. Reproduced with permission. Any further reproduction or use of this excerpt requires the written permission of the author.