Copyright Corner

Between fair use, the TEACH Act (for online education), and Section 108 (for libraries and other cultural heritage institutions), a sizable network of exceptions is built into United States copyright law.  In addition to the ability of users to rely on statutory exceptions for their use of copyrighted works, some copyright owners have already granted permission for certain uses of their works through the adoption of an open license, such as a Creative Commons licensing scheme.  These exceptions and licenses allow many people to use copyrighted materials, thereby informing and enriching their own works.  But what if your potential use of another’s copyrighted work is covered by neither an open license nor an exception?

You may need to contact the copyright holder for permission to use the work.  This entails two separate steps:  First, identifying the copyright holder; and second, writing a request for permission.  The second step may be the easier of the two, with template letters and drafting advice available from numerous sources.  The Copyright Resources Center has a page on our website dedicated to requesting permission:  go.osu.edu/permission.

However, identifying and locating a copyright holder can be a complex endeavor.  Because copyright is transferrable, the original author or creator of a work may not be the current copyright holder.  For example, an author or creator of a work may choose to transfer their copyright to another person or entity, such as a publisher, during their lifetime. If the creator held the copyright until they died, the copyright may have passed to an heir or beneficiary.  And in some situations, even if the copyright was not transferred, the creator of a work may not hold the copyright because the work is a work for hire.  In that instance, the business, University, or other entity that employed the creator of the work when the work was created may be the holder of the copyright.  This post will walk through some important questions to ask when trying to locate a copyright holder and provide some good ideas regarding who should be your first contact.  

If the work you’re seeking to use is published, check the work for a copyright notice.  These notices are usually inside the front covers of books or on the backs of prints and other artwork.  If a notice is included, it may indicate who owned the copyright at the time of publication. If a publisher is noted, contacting the publisher is one good strategy to start your copyright search.  If the publisher keeps organized records, particularly when it comes to publishing agreements, then they may be able to inform you of the copyright ownership of the work in question.  If the publishing agreement transferred copyright to the publisher, then you should direct permissions requests to them.  If they do not hold the copyright, for example if they hold a non-exclusive license, they may be able to tell you who granted them the license.  You should contact that individual to confirm they hold the copyright and request permission.

If the publisher does not hold the copyright, and cannot tell you who does, the next step is to contact the work’s creator.  Usually, this is the person listed as the author/artist/creator of the work. If there is neither a signature nor a copyright notice to indicate who created the work, then determining the creator could be as difficult as determining the copyright holder. Works published in the United States from 1/1/1923 to 12/31/1963 required a timely renewal with the U.S. Copyright Office. A search through these renewal records[1] may provide information on the author or immediate heirs of the author of the work.  If you are still unable to determine on your own who authored/created a work, a subject matter librarian in the relevant subject library may be the best resource for assistance in identifying the creator of a work.

If the creator of a work is alive and still holds the copyright, they can grant you permission directly.  If the creator is not alive, you must discover to whom their copyright(s) was transferred.  The current term for copyright protection in the United States is the life of the author plus 70 years[2].  This means a work is protected by copyright for 70 years after a creator’s death, regardless of who holds the copyright.  A deceased creator’s heirs are the best starting point to locate the copyright holder.  Genealogy sites such as https://www.ancestry.com/ can assist in locating heirs or other living relatives to inquire about copyright status.  Keep in mind that unless copyright was specifically bequeathed in a will, a creator’s heirs may not know that they hold the creator’s copyrights.  If a creator is alive, but believes they transferred copyright, then ask who holds the copyright and follow-up with that individual or entity (corporation, University, etc.) to determine copyright ownership and request permission.

Works made for hire create a situation where an employer or other person for whom a work has been created is considered the author under copyright law.  A work for hire situation may arise when a work has been created by an employee within the scope of their employment.  For example, I am employed by The Ohio State University, and writing blog posts is a duty I perform in the course of my employment.  Therefore, these posts are works for hire and owned by The Ohio State University (go Buckeyes!).  In the case of a work made for hire, the primary point of contact would be the employing corporation, University, or other entity for whom the work was created.  To use another example, if you want to request permission for use of stills from a Disney movie, you wouldn’t reach out to an individual animator.  You would contact Disney’s rights department with your request for permission.

What if, despite diligent research, you are unable to identify or contact the copyright holder?  If you cannot identify and/or locate the copyright owner, it may be an orphan work.  Orphan works can be difficult to deal with because there may be no clear copyright owner to contact about getting permission.  On the other hand, using an orphan work without permission can be copyright infringement.  The safest way to deal with orphan works is to review any potentially applicable copyright exceptions and reconsider whether any of them apply to your use.

While finding the copyright owner in order to request permission to use a work can be complicated, you don’t have to do it alone.  The Copyright Resources Center can help by sharing resources and guiding you in your search.  Have you had luck searching for a copyright owner and sending a permission request?  If so, leave us a comment and let us know what was most helpful in your search!

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By Marley C. Nelson, Rights Management Specialist, Copyright Resources Center, The Ohio State University Libraries

[1] Records for works registered before 1978 may be found at http://archive.org/details/copyrightrecords.  For works registered from 1978 to present, records may be found at http://cocatalog.loc.gov.

[2] Life of the author plus 70 years is the current copyright term for an individual author.  For works with corporate authors, the current term is 95 years from date of first publication or 120 years from the date of creation, whichever is first.