When You Cannot Get Permission:
Dealing with the “Dead End” of a Copyright Quest

 

Kenneth D. Crews,
Associate Dean of the Faculties for Copyright Management
Indiana University-Purdue University Indianapolis
530 West New York Street
Indianapolis, Indiana 46202-3225
Voice: 317-274-4400  
Fax: 317-278-3326

 

The situation is common: You want to use a work that you have concluded is protected by copyright, and your use is not within fair use or one of the other exceptions to the rights of copyright owners. You have attempted to seek permission, but the effort simply has produced no conclusion. Perhaps you did receive permission, but with burdensome conditions or a high price. Or, perhaps you wrote for permission, and the permission was flatly denied. In those situations, you likely have little choice but to absorb the bad news and change your plans. Much more complex and frustrating, however, is when you exert an honest effort, but you simply cannot find a copyright owner or your efforts go unanswered. What do you do when you reach that mysterious “dead end”?

This dead end usually arises in one of the following situations:

You cannot identify a copyright owner. The work itself does not have a name, and you have searched through various different catalogs, databases, and other sources, according to the title or description of the work. Under American copyright law, anonymous and pseudonymous works are still fully protected. Simply because you cannot find the name of the copyright owner does not mean that it is not under copyright. Nevertheless, you are left to wonder about whom to ask for permission. Similarly, you may well be able to identify the original author or copyright owner, but that individual has died, or the company has gone out of business. You have not been able to track any heirs or successors.

You cannot locate the copyright owner. You have concluded that the work is protected, and you have been able to identify the likely copyright owner, but you simply cannot find that person or entity. No listing appears in any of the usual reference guides or directories. You also have conducted a search of the records of the U.S. Copyright Office, and you have found no current registration of a copyright claimant or any documentation assigning the copyright to a new owner. Perhaps the original copyright owner was a company or organization that ceased doing business years ago, and you have not been able to find any person or entities who succeeded to the interests. Perhaps the copyright owner died, but the heirs are untraceable. The copyright, nevertheless, lives on.

You have contacted the copyright owner, but received no response. The copyright owner seems to really exist and to have an address or telephone number, but all of your efforts to obtain permission have been in vain. Your telephone calls go unanswered, and your letters drop into a bottomless pit. You even write a letter to the copyright owner declaring, “I will assume you are giving me permission unless you send me an explicit denial.” That creative effort might be helpful motivation, but as in all similar situations, “no answer” is not a “yes.”

The diligence with which you pursue and explore the possibilities for identifying, locating, and contacting the copyright owner may vary under the circumstances of each project. You might only invest extensive effort when the project is of great importance or the use of that particular copyrighted work is essential to achieving your goals. Regardless, after little or much effort, you may simply find yourself reaching this dead end far too often.

What are your choices when you reach that dead end? Here are some alternatives:

Return to fair use. When you originally evaluated fair use, you may have focused on an assumption about the “potential market” for the work in question, and the possible harm to that market caused by your use of the work. Remember that “market effect” is one of the four factors to analyze in fair use. Now that you have immersed yourself into the quest for permission, you may have discovered that no permission seems to be forthcoming at all. If you really are at this “dead end”, you may very well have found that there is no realistic market asserted for this work. You may accordingly be able to reevaluate fair use a bit more generously than you had expected.

For more information see: Copyright Management Center: Fair Use Issues

Replace the materials with alternative works. You may have indulged in your project with firm commitment to using particular images, specific paragraphs, or exact selections of music. You need to ask yourself whether those specific copyrighted works are the only materials that will satisfy your goals. In many cases, you can achieve your desired end results with a selection of copyrighted works that come from more cooperative copyright owners or that may be in the public domain and available for general use.

Alter your planned use of the copyrighted works. Your ambitious plans may have involved scanning, digitizing, uploading, dissemination, Internet access, and multiple copies for students and colleagues. Requests for broad or variable rights of use often scare copyright owners or leave them unable to respond optimistically. As a result, your inquiries can get tossed into the bottomless pit. On the other hand, if you have placed multiple calls and sent multiple requests for permission without any response whatsoever, you are not likely to get a response under any other circumstances. Changing your ambitious plans to something more modest and controllable may also create a more favorable outcome of the fair-use analysis. When you reign in the number of copies or the scope of access, or the potential for rapid digital duplication and dissemination, you may very well find that you have strengthened your claim to fair use under both the “purpose” factor and the “market effect” factor.

Conduct a risk-benefit analysis. You have diligently investigated your alternatives. You do not want to change your project, and you remain in need of the elusive copyright permission. The remaining alternative is to explore a risk-benefit analysis. You need to balance the benefits of using that particular material in your given project against the risks that a copyright owner may see your project, identify the materials, and assert the owner’s legal claims against you. Numerous factual circumstances may be important in this evaluation. The “benefit” may depend upon the importance of your project and the importance of using that particular material. The “risks” may depend upon whether your project will be published or available on the Internet for widespread access. You need to investigate whether the work is registered with the U.S. Copyright Office and weigh the thoroughness of your search for the copyright owner and your quest for appropriate permission. Undertaking this analysis can be sensitive and must be advanced with caution and with careful documentation. You may be acting to reduce the risk of liability, but you have not eliminated liability. ¹ A copyright owner may still hold rights to the material and may still bring a legal action against you, based on copyright infringement. Your good faith can be helpful, but it is not protection from liability. Members of the Indiana University community may want to consult with their supervisors or with University Counsel for assistance with this decision.

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¹ The laws of some other countries have addressed this problem of “orphaned works.” For example, Canada has established a system whereby users may contribute a prescribed royalty payment to a government fund in exchange for permission to use works when the copyright owners cannot be identified or are not forthcoming. Unfortunately, the law in the United States includes no such alternative. Consequently, copyright owners are neither required nor encouraged to respond to requests for permission, and users are left to explore a range of alternatives for accomplishing their goals.

 

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