Knowing how and when to obtain permission to quote is something that confounds every indie author at some point of their career. Perhaps at some point with every book. If you write fiction, you may want to quote poetry or song lyrics in your novel. If you write nonfiction, like all of our clients at Ingenium Books, you may want to quote other notable experts in your field. In either case, keeping on the right side of copyright law is in your best interests.
It’s also good to know how other authors should be approaching you if and when they wish to obtain permission to quote excerpts from your work.
Copyright laws vary country to country, though many are connected through copyright treaties such as the Marrakesh Treaty, the World Intellectual Property Organization, and the Berne Convention. There are 175 countries signatory to the Berne Convention, which means the almost all of the globe’s 192 countries have agreed to respect one another’s copyright laws.
Basically, it means that authors and creators from each of the signatory countries have minimum standards of protection related to economic rights. That includes the right to economically benefit from translation, adaptation, public performance, broadcast, or reproduction of their original work. And, if you want people to treat your copyrighted works with respect by formally requesting permission to quote from you, it makes sense to ‘pay it forward’ and be sure you’re operating the same way.
When it comes to determining when and when not to quote from another source, there several factors you need to consider. First and foremost is determining if a work is already in the public domain, in which case permission to quote is not required. While the Berne Convention also requires member countries to adhere to minimum copyright duration of life-plus-50 years, duration varies country to country. For Canadian authors, copyright lasts for 50 years after the death of the author. In the US, UK and EU countries, it’s life plus 70 years. Some authors or their estates will assign copyright to extend beyond the death of the author, so you have to be cautious. Thereare other considerations, too.
If you wish to seek permission to quote passages from works published prior to 1948, 70 years ago, most likely the copyrights on those quotes have expired and they are now in the public domain. Therefore, you would be permitted to use such quotes without obtaining explicit permission from the original author, or the author’s estate. An example would be quotes attributed to the founding fathers of the United States.
The major exception to that stated above is for advertising slogans and trademarks. Regardless of when they were created, conceived, and fixed, any slogan or trademark still in use remains protected by copyright.
Even if the excerpt you intend to use is quite short, you cannot count on the fact that it is safe to use without obtaining permission to quote. Canada’s copyright law, for example, protects any ‘substantial’ part of a work, and not an ‘insubstantial’ part of a work. There is also a concept that a very short quote or phrase is only an idea and a ‘work’, therefore not protected by copyright. There is no safe standard on how many words you are permitted to quote prior to risking copyright infringement. A general rule is: the shorter the quote, the better chance you can use it without permission.
However, that may not necessarily be the case. A cunningly devised short phrase may actually contain very unique and original expression that is protected. If this is the case, you would be required to follow required standards regarding copyright and permission to quote.
There are certain exceptions on when the copyright owner’s authorization is required (permission to quote) and when it isn’t. Typically, these exceptions are known as ‘free use’. Free use can be exercised in the following scenarios:
Take note that ‘free use’ and ‘fair use (or ‘fair dealing’ for Canadian authors) aren’t interchangeable terms. ‘Free use’ pertains to the minimum standards that signatory states are required to respect by the Berne Convention.
Generally speaking, using the US as an example, the courts consider four major factors in order to determine what constitutes fair use or copyright infringement.
The latitude for copying or excerpting original material is generally wider in scope for teaching, noncommercial research, news reporting, commenting, review, criticism, and uses such as those for parodies which may fall under something called transformative use.
Works of fiction are not as highly protected as those for works produced in order to present facts, such as those involving history, technical, science, and other similar factual-based subjects. Due to the fact that copyright protects original expression exclusively, facts in and of themselves do not fall under the protection of copyright.
The only element with regard to published factual information that may receive copyright protection would be the original arrangement or selection of the material. Quoting fiction for purposes of review or criticism, as long as the length of the excerpt used is reasonable, generally falls under fair use. If, however, you quote any material that has been previously unpublished, regardless of whether it is fact or fiction, you are likely falling outside the bounds of fair use.
The quality of the content, as well as the quantity of the portion quoted in terms of percentage of the entire work, are both factors that the courts consider when determining the applicability of fair use. There is no set rule regarding unallowable quantity – each situation is unique and judged independently.
Even if the number of words copied is quite insignificant, if the ‘substantiality of the portion used’ reflects the core meaning and message of the original work, in other words its heart, its new use may represent a copyright violation. Another factor used by some courts is the proportion quoted from the original work in relation to the new work.
A major factor related to the allowable application of fair use by the courts involves the issue of whether or not the copied content takes away the commercial value of the original author’s work. An example of this might involve quoting significant portions of the chapter of someone’s book, regardless of the purpose involved for using the content. If the content copied provides the buyer of the new work with information and solutions they would have normally had to pay for by purchasing the original work, the new use may constitute copyright infringement.
There is an additional point to keep in mind when considering fair use/fair dealing and how the concepts may apply in the courts. Juries and judges can be unpredictable as to how they apply and enforce the above-mentioned factors. Much of the time the result of a case may depend upon the judge’s perspective and experience, the assertiveness of the copyright owner, and of course, the facts of the case.
The process of seeking permission involves contacting the copyright owner directly, or their estate, or their agent/publisher, and making a direct request for use of the work. Generally speaking, you may have to go through a process that involves signing a contract as well as paying a substantial fee to use the work.
Keep a spreadsheet and track your requests, the responses (or lack thereof) and the results so that if, in future, you are required to show the efforts you undertook to obtain permission to quote, you will easily be able to do so.
And, even if your new use of the content falls under fair use provisions, it is incumbent upon you to always credit your source.
Boni is co-founder of Ingenium Books and an author, editor, and ghostwriter. She also manages communications and media for the Alliance of Independent Authors. As an award-winning former Canadian television reporter, news anchor, producer, and talk show host, working under the names Boni Fox and Boni Fox Gray, Boni covered politics, government, the economy, health, First Nations, and crime. She won several Canadian Association of Broadcaster (CAB) awards and a Jack Webster Award for best documentary. Boni also held senior management roles in government, leading teams responsible for editorial, issues management, media relations, strategic communications planning. Boni is co-author of Rock Your Business: 26 Essential Lessons to Start, Run, and Grow Your New Business From the Ground Up.
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