How to avoid the need to secure permission

Guide to Rights Clearance & Permissions in Scholarly, Educational, and Trade PublishingMaybe it was something you saw in a magazine or at a bookstore. Maybe it was something you saw online. Maybe it was something that caught your eye in a grant application or proposal…a good idea in poorly skilled hands seemingly not up to the task. In any event, wherever you first saw it, it inspired you to develop and publish your own article or book on the subject.

Anyone who has worked in an intellectual or creative endeavor knows that many new works build to one degree or another on the earlier work of others. But getting a head start by leveraging the intellectual work product of another is potentially problematic. When does inspiration cross over into infringement or a breach of scholarly integrity? The lawyer’s answer is: it depends.

It depends on how you obtained access to the source material. It depends on whether the source material is fiction or fact-heavy. It depends on what, and on how much, you took from the source material. And it depends on the nature and purpose of your writing.

If you are producing scholarly work, a special set of rules must be overlaid. But if you are producing work for education or trade markets, you can be inspired by and reuse ideas, facts, or style of another’s earlier work to form a new work without infringing a copyright. This is because these elements of a work are not protected by copyright—not “owned” by the copyright holder—and thus they are available to be reused and recast into new original expression. What is protected is the manner of expression—the author’s analysis or interpretation of events, the way she structures the material and marshals facts, the choice of words, and the emphasis on particular events.

Amistad – A Case in Point

The Amistad dispute was a case in point. La Amistad was a Spanish schooner being used to transport kidnapped Africans into slavery in the US in the summer of 1839. The Africans revolted en route and took control of the ship, but were captured before they could complete their escape and were subsequently put on trial. Their case went to the US Supreme Court, which ultimately set them free. The story of their revolt, capture, and trial has been depicted in a play, a historical novel, Echo of Lions, and a Steven Spielberg movie, Amistad.

No one can own history simply by being first to write about it. But in this case, gaps in the historical record were filled by the book author with fictional scenes and characters in her book, published in 1989. Production of the Spielberg movie was announced in 1996. One year later, the book author sued, claiming that the Spielberg movie appropriated nine of those gap-filling inventions and embellishments.

The court hearing the case noted that, because both the book and the movie were based on historical events, the plot, settings, and sequence of events were inherently similar. The court observed, further, that the dialogue was not similar and that the mood and pace were also different. Ultimately, the court was not convinced that the nine gap-filling inventions and embellishments claimed by the book author to have been copied by Spielberg actually involved protectable expression.

But having to defend a case, even if you prevail in the end, is expensive and distracting. What do you need to know to avoid or prepare yourself to respond to a claim, with an eye toward keeping it from ever getting to litigation?

The Potential Claims in Trade and Educational Publishing

First, you should understand the nature of the potential claims because the circumstances that give rise to each of them, the available remedies, and the defensive steps you would take differ. The most likely claim is for copyright infringement, i.e., a claim that you took more than you should have from someone else’s copyrighted work. The other, less likely, claim is for breach of a contract implied in fact or in law. This claim is not dependent on your having taken too much copyrighted expression, but instead is focused on how you got access to the book idea and whether it was under circumstances that created a reasonable expectation of compensation for any exploitation.

Attribution, Authorship, and Scholarly Integrity

Altogether apart from the question of whether your reference to the work of some other requires you to get copyright permission or offer compensation based on an implied contract, you may nonetheless need to provide appropriate attribution or even authorship credit if your writing is for a scholarly, scientific, or academic publication.

Scholarship involves becoming familiar with the existing body of work, the work of others, and adding your own original thought. Scholarly integrity requires that you not claim origination or authorship for the work of others, that you attribute their work when you have incorporated and built upon it, that you not claim authorship for work to which you did not materially contribute, and that you share authorship with all who have contributed materially to a work you have participated in creating.

Practical Pointers and Guidelines

Recognizing that most creative work is inspired by the earlier work of others, there are some best practices that you can adopt yourself that will put you in a position to deflect or defend against claims that your work borrows impermissibly from the earlier works of others:

  1. Consult a number of sources, not one, and keep a list of the works you consult. Someone once said: “Copying from one source is infringement; copying from multiple sources is research.” It’s not literally true, of course. It is certainly possible to infringe multiple works in one project. But to the extent that you have a record of having consulted multiple works and to the extent that the cited similarities between your work and an accuser’s work are also present in some or all of the other works you consulted, it will be less likely that those similarities will support an inference that you copied impermissibly from any one of them.
  2. Take skeletal notes… just the facts and abstract ideas, and keep these notes. Working through this intermediate step will make it less likely for you to pick up protected expression from a source work inadvertently. It is not uncommon for a writer to take detailed notes from source materials, set them aside for other projects, and return to them months or years later, having lost track of where they came from or how closely they were copied or paraphrased. Also to support your memory, if you are doing scholarly work, record the source (author and publication) for each concept or finding in your notes for proper attribution later.
  3. Set the source works aside and work from your notes. This will help you avoid inadvertent appropriation of protected expression.
  4. Keep a contemporaneous log of your writing activities and how much time you spend developing your manuscript (the less time it takes you, the more likely it is that you took inappropriate short cuts). The contemporaneous notes are business records admissible as evidence in support of your recollections about how your work was created. And evidence that you took these precautions and that you did not generate your manuscript in an unreasonably short period of time will help you defeat an inference that your work was the result of impermissible copying.
  5. Keep your interim drafts, for the same reason.
  6. Saul Bellow said it: “You never have to change anything you got up in the middle of the night to write.” And I think it’s safe to say that whatever wakes you in the night and moves you to start writing is very likely sufficiently removed from whatever inspired you to make infringement unlikely as both a practical matter and a legal matter. For everything else, watch your step.
  7. If your work is online and the work you wish to extract is also online, consider linking to the work you’d like to reference. Linking merely directs your reader to the third-party material at its source and does not result in an exercise of any of the rights belonging exclusively to the copyright holder. It also supplies unassailable attribution, since your source is fully disclosed.

For more on this subject, order Gillen’s new book, Guide to Rights Clearance & Permissions in Scholarly, Educational, and Trade Publishing

Stephen GillenSteve Gillen teaches Electronic Media Law at the University of Cincinnati College Conservatory of Music. Steve worked for nearly 20 years in publishing prior to entering private practice in the middle 1990’s. He is presently a partner at Wood, Herron & Evans (a 145-year-old Cincinnati law firm focused on intellectual property) where he concentrates his practice on publishing, media, and copyright matters. He is also the author of Guide to Textbook Publishing Contracts, and coauthor of Writing and Developing Your College Textbook: A Comprehensive Guide.