Why Won't Playboy Grant Cartoon Rights?

Dear Rich: Playboy Rights & Permissions recently denied us permission to use a Playboy cartoon in a print only, low number of copies, scholarly publication. The reason stated is “ I am sorry but the cartoon by [famous cartoonist’s name] that was originally published in the [month & 1965] issue of Playboy is not available for third party licensing.” What can I infer from that statement? I wonder does Playboy hold exclusive rights to that cartoonist's work? Do they know the rights status? I'd like to find a way to use the cartoon but not if it means taking a risk with an entity like Playboy. 

The statement, "not available for third party licensing," may mean Playboy doesn't have the right to license the cartoon. Although we are not privy to the arrangement between the magazine and the cartoonist, a case involving the artist, Patrick Nagel, revealed that until July 1979, Playboy acquired rights from artists by printing the following legend on the back of checks: 

Any alteration of this legend agreement voids this check. By endorsement of this check, payee acknowledges payment in full for the assignment to Playboy Enterprises, Inc. of all right, title, and interest in and to the following items: [a description of the work].

An assignment versus work made for hire. In the Nagel case, the court of appeals determined that this language referred to an assignment, not a work-for-hire. One difference between the two types of ownership is that an assignment can be terminated after a number of years while a work-for-hire cannot. For example, transfers of ownership made in 1965 could be terminated in 2021 (see 17 USC 304). Therefore if Playboy used a similar legend in 1965, and if the cartoonist's estate terminated Playboy's rights, the cartoonist's estate may own the right to license the cartoon. 

Or maybe they don't want to deal ... Alternatively, the cynical members of the Dear Rich Staff wonder if Playboy just doesn't want to bother with small licenses such as yours and they use this statement as an all-purpose rejection. 

Is Artist's Permission Required to Reproduce Artwork in Exhibition Catalog?

Dear Rich: As the representative of a particular (living) artist, I was recently contacted by the organizer of an exhibition in which original art pieces owned by various collectors will be on display -- including my client's art. Photos of the art will be included in an exhibition catalog that will be made available for sale to patrons of the exhibit. Because these catalogs will be sold, the organizer of the event has requested my client's permission for said art to be included (my client will not be compensated). In this particular situation, is my client's permission actually necessary?

Yes, your client's permission is required. This is the case regardless of whether the catalog is sold or offered for free. That's because when an artwork is sold, the buyer only acquires ownership of the physical work, for example, the framed painting. As the Seventh Circuit held, “a copyright is not transferred automatically with the transfer of the copyrighted good [thus] when you buy a book, you don’t obtain the right to make and sell copies of it.” The copyright (the right to display and make copies) is typically retained by the artist. There are exceptions to this rule, for example, if the artwork is a work made for hire, or if the artist assigns copyright to the buyer, but otherwise, the artist controls the duplication. BTW, the same rules apply for non-fungible tokens (NFTs). So, if your client creates an NFT, an NFT buyer would not acquire copyright.

Seeks Permission For Chinese Translation

Dear Rich, I am an independent permissions editor and have the opportunity to clear rights on behalf of a reputable Chinese scholarly/academic publisher. They plan to translate a U.S. title from English to Chinese. First, they need to clear the rights for protected material in the volume. Is there anything I should consider, that might not occur to me, about the process of clearing rights from the United States for a foreign publisher? Or is there any exposure I might have that I should be aware of?
As a permissions editor, you're probably already aware of most of the important issues but we'll cover some of the basics just in case. Clearing rights for a foreign language publisher involves acquiring at least two separate rights: the right to publish in the territory (China); and the right to publish in the language (Standard Chinese). Defining the territory is especially important as it limits where the translation can be distributed (and may prevent export or sales outside the territory). Also important are issues regarding duration of the permission, approval of the translation, and format(s) of publication (trade, hardcover, eBook). And of course, don't forget to check photo, artwork, and text permissions which may have been negotiated separately.
Your exposure? Your legal liability if any, could conceivably come into play if someone pops up after the translation is published claiming that he or she is the real owner of rights. You might be able to shield yourself in a few ways:

• you can ask the person granting permission to attach proof of rights ownership (a publishing agreement, etc.) to the permission agreement and incorporate it by reference. 
• you can also include a warranty and/or indemnity provision in the permission agreement. Warranties are contractual promises. The warranty can be something basic such as "Licensor warrants that it has the right to grant permission for the licensed uses as specified above and that the material licensed does not infringe the rights of any third parties." A licensor who provides indemnity is agreeing to pay for the licensee’s damages for certain situations. Indemnity provisions are also sometimes referred to as “hold harmless” provisions because the provision often states that the person granting permission shall hold the other party harmless from any losses, etc. Many persons granting permission balk at indemnity provisions and you may not have the bargaining power to include one. In addition, the enforcement of warranties and indemnity may be difficult as it involves filing a lawsuit based on the permission contract -- often an expensive proposition when dealing with parties outside the U.S.

Do We Need Formal Contract for Private School Permission?

Dear Rich: I work for a fully online private school and am seeking permission to use images, videos, and links within the course. Do I need to have a formal contract with a signature confirming that permission is granted to use the item, or is it enough to have an email response saying that they grant permission for our suggested use? 
The copyright law says that you need a writing signed by the copyright owner or his or her agent to transfer or license any of a copyright owner's rights. The signature can be handwritten or it can be a digital or electronic signature. If the email contains permission and is "signed" by the person who has authority to grant rights, your collection of emails is probably fine for permission purposes.

Can I Use Poems in My Divorce Book?

Dear Rich: I have been writing book about my divorce experience. Over the last few years my family and friends have sent me inspirational quotes and poems (found on the internet) that have helped me through this difficult crisis. I would like to use/print some of the poems in the chapter entitled "Life, Self Esteem and Spiritual Affirmations" and want to give full credit to the author. I have the titles of the poems, the website, but not the author's name and want to follow the law regarding copyright. I have enclosed a few samples of the poems to clarify my questions regarding copyright and how to find the author and get permission to use their poem.  Sorry, but we don't open email attachments -- we're paranoid we'll catch something -- so we don't know to which poems you are referring. Regarding your questions:

• Finding the author. Start by writing to the website that reproduced the poem to determine the author and title. You can typically find a way to contact the site by clicking the "Contact Us" button or writing to "info@[domain name]. If that doesn't work search whois.net for the owner of the site. If you can't get a contact, or if your contact isn't responding, we'd suggest placing a large chunk of the poem's text into Google (or whatever search enging you're using). That may turn up alternate sightings that will give you the author and/or title. Once you have that, you should be able to track the poem to find the source for permission.
• Copyright. Copyright law requires permission unless: (1) the work is in the public domain; or (2) you are using so little of the poem -- for example, one or two lines -- that it qualifies as a fair use. Practically, you are probably not going to need permission unless a publisher expresses interest. If your book is self-published, it's unlikely the poet will learn of your reproduction..

How Much Do I Charge Publisher For Use of Tables?

Dear Rich: A large university textbook company has used my developmental therapy tables in two runs of of their prior publication (one psychology textbook) and has now requested renewed permission for a 10 year period to use these tables in any and all of their publications print and online. How much should I charge them per year as the permissions fee? We did not charge them anything initially but were given a copy of the book. There are no established rules for licensing fees. When two companies are competing for the same customers  -- for example, GettyImages and CorbisImages, the companies may price their products competitively. But if you are the only party with the available content, you need to decide how you value the deal, what's fair, and what the market will bear.
Why we can't tell you a number. If we suggest a number and you make a deal, you'll eventually think that you could have gotten more and you'll get mad at our hard working staff. (And if we suggest a number that's too high, you may lose the deal and dislike us even more). Most likely you'll be seeking something north of $250 per year, perhaps even four figures depending on the factors listed below:

• Is the license exclusive or nonexclusive? If the agreement prohibits you from licensing the content to anyone else, your asking price would be higher.
• How important are the tables? Keep in mind that many companies rely on calculators, tables and charts as a source of high-traffic content so the higher the importance to the licensor, the more you can seek.
• How hard would it be to recreate your tables in a non-infringing manner? Keep in mind that raw data and facts can't be protected by copyright law, only your unique method of organizing and presenting the data. So, if it is fairly easy to recreate without infringing (or if someone else has created similar non-infringing content), you may have to divine the magic number that won't send the company back to the drawing board.

BTW Dept. Whatever you agree upon, see if you can get the whole license fee at once instead of payments per year. It's generally best to get it all at once than have to track it down each year. Also make sure that your license arrangement deals with attribution and credits appropriately (if that's what you wish).

Tarot Cards Using Music Quotes

Dear Rich: I want to publish a classic rock-themed tarot deck and book set. This tarot product will break new ground in that it will be based on a “Behind the Music”-like backstory of a fictional band. (The only real thing being used are song lyrics, not the names or likenesses of real rock musicians.) For each of the 78 cards to be created a 2-6 line lyric excerpt has been chosen for the tarot card image, as part of a 2-3 page “treatment” of the card in the book. NO LYRICS WILL BE PRINTED ON THE CARDS; only in the book. The treatment includes reproduction of the card image, a description of the card imagery, its keywords and meanings in a reading, a fictional band storyline vignette associated with the card, associated spiritual/metaphysical concepts, and other items like classic rock trivia, quotes, music concept definitions, etc. The pairing of known lyrics with new imagery could be considered transformative, as those words paired with a metaphoric image may yield a new perspective on the lyric. I’m thinking this won’t exempt me from needing permission, right? The boon to the copyright holders is that my use will not compete with, nor ever take revenue away from them, but rather, my quoting of the lyrics and pairing them with my tarot card images, will expose more consumers to the complete work (song) and perhaps be inspired to purchase it! Thank you in advance for your guidance in this matter! 

1. For this project, how best to first approach publishers with permission requests: email, form? How much detail on planned usage do you state in the email? 
2.  How much detail should I provide on exactly how I plan to use each lyric? The Permissions form has no place for it—where do you specify what portion you plan to use and how? Would it help my case to include an overview of the project and mockup sample like I did for you? 
3. Will it help to mention the above selling points (wider audience, more sales) above to entice publishers to grant permission? 
4.  Do I have only one shot to convince them? Can I try a different tactic if they say no? 
5.  Your Permissions form has a section for book publisher info and I don’t have that; I’m doing this “pre-authorization” to help sell the book proposal; I assume it’s ok to skip that? 
6. Based on your knowledge of the music industry, just generally, of these 3 scenarios, does any one give me a better chance of getting approvals and/or reducing/eliminating fees: 1) I am planning to self-publish this set; 2) I am seeking a mass publisher; 3) I have a signed contract with a mass publisher. IOW, I am not averse to playing up “it’s just poor little ol’ me who doesn’t have loads of $$ looking to produce a tribute to rock musicians” if it would help my case! Or maybe they don’t want to deal with some “no one” who doesn’t have the backing of a major publisher? 
7. Since most rock band names are trademarked, do I also need to get permission to cite the names for lyric excerpts and in a complete list of songs/lyrics used in an appendix? 
8. I assume I should group multiple requests to the same publishing rep. in the same letter or email? 
9. If 3 publishers are listed for a single song (like 3 band members), do I need to contact all 3 AND get ‘Yes’ from all 3 to be ok? 
10. How long can I expect it take on average to hear back?

Yours may be the longest question(s) we've ever received. Sorry we had to edit it down to its current state, but like our friends, The Residents, used to say, "Editing is no sin." In general, we viewed your question like the Great Coral Reef, impressive for its overall size.

Right, you had a question(s). We believe that using three or four lines of lyrics probably qualifies as a fair use and may not merit all of the effort that you're considering especially if you self-publish. That will change if the book is licensed by a publisher and you have to indemnify. At that point, you can seek permission (and hopefully you can pay for it with your advance). Until then, it may be an unnecessary effort.
Dealing with music publishers. The form and method of communicating with publishers probably doesn't matter much -- email should work fine. Provide as much detail is necessary; "short-and-to-the-point" works best. Don't try to convince the publishers of the benefits to them. They probably don't care. They also probably won't care whether you're self-published or with a publisher because their licenses are usually geared to quotas (under 1,000 copies, etc.). Mostly, they want to know when they will get your money. Usually, they respond within a few days.
The songwriters and the band name. Hopefully, it won't matter how many songwriter/publishers there are. One publisher is usually designated as the administrator and that's the party from whom you would get permission. Also, you don't need permission for the use of the band's name in connection with the lyrics (but avoid putting any band names in the advertising). 

Using YouTube in Book

Dear Rich: (1) Can I use the name "YouTube" in my ebook? (2) Can I reference YouTube links in my ebook? (3) Also, could the word YouTube be used in the title? (1) Yes, (2) yes, and (3) yes (as long as you don't imply YouTube is associated with or endorsing your book).

Using 70's Voice Over in New Music Track

Dear Rich: I'm in the final stages of producing a music single. In the song I've sampled the voice-over of a 1970's TV ad. The voice-over is of a familiar and famous figure from that period. Would I need to clear this and for this purpose with whom, as I assume in this case that no record company or music publisher would be involved. We're not sure which familiar and famous person's voice-over you're using but if you're creating a second single, you might want to consider a classic 70s TV ad in which a size-challenged nautical figure -- perhaps a descendant of this character -- rides around in a boat in your toilet and urges consumers to pollute the waters with blue chemicals. How '70s is that?
Right you had a question. You're correct that you wouldn't need to clear the voice-over recording with a music publisher or record company. You may not need any permission at all, as explained below, but there are three possible legal rights you need to consider:

• the copyright on the commercial. The most likely permission needed is that of the copyright holder -- that's likely to be the ad agency that created the commercial, or the company whose product is featured in the commercial. The copyright owner would own rights to the text of the commercial and to the audio. You wouldn't need permission if you claimed fair use (which can always be a bit tricky). And you probably wouldn't need to bother with permission if the company holding copyright had disappeared and you couldn't track down a successor. (And of course, you wouldn't need permission if your song had limited appeal and was unlikely to be heard by anyone connected with the copyright owner -- what we call the "tree falls in the forest" theory.)
• the use of the famous figure's voice.  If the familiar and famous person's (FFP) voice is recognizable and listeners think that it is being used for purposes of endorsement, the FFP might have a claim based on the right of publicity. We wouldn't worry about this too much because the FFP's ROP probably won't be triggered unless the song is used for a 3rd party commercial purpose -- that is, it's licensed for use with another product or service (This article provides a short ROP summary). 
• trademark rights. If the product name (the subject of the commercial) is included in your song, that might trigger claims of dilution or infringement but both of these claims are unlikely to succeed as use of trademarks is permitted for informational (or editorial) uses such as songs. One judge characterized the conflicting interests of the parties "Speech-zilla v. Trademark Kong." 

Why Can't We Use Military History Photos in Book?

Dear Rich: We publish ebooks for the Amazon Kindle and other ebook devices and frequently use U.S. government material for our works. We are very clear on what to use (e.g. no contractors work) and where to distribute it. But one thing appears very strange to me. How can the U.S. government say that the information on a certain .gov or .mil website is public but at the same time restrict commercial usage? To give you an example kindly check this site that offers military and historical texts worked out by U.S. government officials and not registered at the Copyright Office (we checked that already). From my understanding - and that's true for Germany - if a "thing" is public domain you are free to do with it whatever you want, give it away of sell it, make derivatives etc. etc. Can you shed some light on this? According to the CMH site:

"Unless otherwise noted, information presented on CMH Online is considered public information and may be distributed or copied for non-commerical purposes. Use of appropriate byline/photo/image credits is requested. If copyrighted or permission restricted materials are posted on CMH Online, the appropriate credit is given. Visitors wishing to repost or use such materials for their own projects should make separate arrangements for permission with the owner."

In other words, the site claims to sift out those works that are under copyright by labeling them with a credit. Everything unlabeled presumably is in the public domain. Assuming you can trust the site's filtering of material, then, as the Supreme Court has stated, you can do anything you want with those materials, with or without attribution to the author.
By the way, although works prepared by federal government employees are in the public domain, you may be surprised to learn that the U.S. government -- though it rarely exercises the right -- is legally entitled to claim copyright outside the U.S. (see page 59 of link).
P.S. The licensing dilemma. Finally -- and this doesn't seem to be an issue at the CHM site --  we're always concerned about the trend to license public domain material. For example, if you check out the terms for this Department of Defense site, you'll see that some restrictions have been placed on use of U.S. government imagery. That claim is made on the basis of a license --  that is, you agree that as a condition of using the website, you will abide by the rules regarding photo use. Generally such licenses are only effective if the user must click to accept or demonstrate some action taken to indicate assent.
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Will Publishing Love Letters Invade Privacy?

Dear Rich: My question concerns the intersection of copyright permission and a release for invasion of privacy. I’ve written a memoir that quotes lines from a former girlfriend’s love letter to me. To get permission to do this, I am using a text permission agreement taken from your book Getting Permission. But, assuming the permission is forthcoming, it occurs to me that publishing her letter, even with a copyright clearance, also invades her privacy. Do I also need a release for this, or is the copyright permission alone sufficient to protect me? Ah, love letters ... Do people still put pen to paper any more? It's hard to believe that the mailbox was once a place where you could find intimate correspondence. We are reminded of the words of W.H. Auden: "And none will hear the postman's knock/Without a quickening of the heart./For who can bear to feel himself forgotten?"
Right, you had a question. Your copyright permission -- assuming it mentions the intended use in your memoir -- should protect you from claims of invasion of privacy. Invasion of privacy is typically either the public disclosure of private facts or it's an unwarranted intrusion into someone's private affairs. So, if your former girlfriend is consenting to publication, it would be difficult for her to later claim that her privacy is being invaded. There is one possible exception to her implied release of claims, and that is if you use false information -- for example, you deliberately misquote the letters -- in order to place your girlfriend in a bad light. In that case, she may have a claim for "false light" invasion of privacy or for defamation. In any case, it would be hard to shield yourself from these latter claims. We imagine that a former girlfriend would be hesitant to sign a bullet-proof "I won't sue about anything" release unless she had the ability to review the memoir ahead of publication.

Permission to Use Museum Pictures

Dear Rich: If I receive permission from a museum to reprint a picture of their building and a picture of a sculpture or artwork, am I to assume that they have the necessary permission from the creator of the artwork or building, as well as the photographer of the given piece? How many permissions do I need? Speaking of permissions and museums, the Dear Rich Staff wishes we could get permission to show you some photos from this exhibit. Our staff reports that it’s quite a mind-blowing event. Which reminds us of when our staff was younger and we used to go up to Berlin, New Hampshire and visit an uncle who worked at a paper mill and that's where we learned how to make paper pulp. All very fascinating stuff.
Right, you had a question.  When it comes to permissions, don’t assume anything; ask what rights are being conveyed and get the response in writing. As for using the picture of the museum, you’ll need permission from the photographer and assuming it’s a publicly viewable building, that’s probably all that’s necessary. (More on that, here.) It’s possible that the museum may have acquired the rights from the photographer so in that case, all is well, as long as the permission states that. It's wise to include a warranty -- a short statement in which the museum assures you that it has the rights described. If the museum doesn’t have rights from the photographer, you'll need to contact the photographer or whoever was assigned the rights.
The picture of the artwork. As for the artwork, you'll need permission from the artist and the photographer of the artwork. Again, the museum may have been assigned these rights and that should be expressed in the permission. By the way, slavish photographic reproductions of public domain artworks may not always be entitled to their own copyright. (We talk about it here). In other words, it’s possible that a photographer may not get a separate copyright simply for creating an excellent replication of a painting.