Author Tips for Considering Copyrighted Material Reuse
If you’ve attended a pitch session with a book agent, you might have noticed they prefer that they prefer you come empty handed rather than sharing a manuscript or sample content. While they’ll be happy to hear you succinctly describe your book idea, a former agent has shared that they try to avoid any chance that a would-be author comes back later to say that a similar, successful book was borne out of their manuscript share. In part, that may be because ideas can’t be copyrighted, but things that are physical and tangible often can be.
Copyright issues come up not only when an author seeks to protect their work, but when they want to use that of others. For instance, a writer of historical fiction might have used reference books that cover what citizens used to wear and how they worked in 17th century France. Here are some general guidelines on how to approach your rights as an author and when and how to approach copyrighted material of others in the U.S., as well as resources for digging deeper into copyright specifics.
But first, an article on legal copyright wouldn’t be right if it didn’t carry a disclaimer (ahem). So readers, caveat emptor: I am not a literary lawyer, and present this information to be helpful, but not as the last word on any element discussed.
Your Rights as An Author
On the plus side, copyright laws nationally are flexible enough that you own the rights to tangible work such as a book manuscript, whether you file for a formal copyright or not (though from what I’ve seen while working at a non-profit involved in a lawsuit, you can be required to provide evidence tied to a date of when you first developed something like the name of a program). Keep in mind when you get worried about thievery that it also takes some real nose-to-the-grindstone work for someone to take your creation and make it marketable, so this likely happens less often than authors fear.
Your copyright rights (aka “author” or “literary” rights) include the ability to make copies of your work, publicly display it, and to develop new works based on your original content, such as a sequel book in a series (as covered in this general recap of author rights from Cornell University. Whether you’re developing a feature for a magazine or a book that you’ll pitch to a publishing house, you own all the rights to a tangible work until you transfer all or part of those rights to someone else.
Over the years, in freelance writing for magazines at least, I've seen publications move toward asking that authors give up more of their rights just to be paid for an article. But there are some that still offer to only take First North American Serial Rights, and you can negotiate what rights change hands in any contract (to the extent that the other side is willing to be flexible). In the case of publishing houses, the stories I’ve heard suggest it can be difficult to hold onto all author rights, which is likely among the reasons good agents are so coveted, as they’ll fight for those potential money-related elements on your behalf. The “cost” of doing business with traditional publishers in terms of right losses are also one of the reasons self-publishing became popular. The same is true when it comes to the development of hybrid publishers (which can be legit), as authors pay for their editing and other services partly in exchange for holding onto literary rights.
Rights to Reuse Content
Just as your content (often) is protected under copyright laws, the same applies to the tangible work of other creatives. Say, for instance, you’re a self-help author wanting to quote well-known Eastern experts on mindfulness and lines from a poem written in the ’70s. Unlike a professor who makes 12 copies of a few lines from an 18th century novel and hands them out for educational use only, the fact that someone (you and/or a publisher) will profit from your book often puts the reuse into a different, ask-for-permission category. That is, the professor was able to avoid seeking permission because the content use is considered Fair Use.
To see when you can use copyrighted material without permission, it’s helpful to visit links such as this one from Columbia University that go through the basic do’s and don’ts. For instance, reusing a graphic from a Spanish news site likely would be OK for that professor handing out photocopies to a small class and not directly profiting from the single reuse. But if that same professor wanted to run the same graphic in a trade magazine that readers pay to receive, or in a book she planned to sell, that becomes a commercial, for-profit purpose requiring an ask. If she posted the class-shared content online, that possibly stepped outside the bounds of fair use, or if she made many copies of the graphic. Note that mentioning other people in memoir and such is a whole 'nother subject, which I discuss in a related post.
You might have noticed that the amount “borrowed” matters in examples cited. Fair use involves using part of a work in a limited way, such as quoting the meat of a sentence in a novel. Broadly speaking, single uses of content and small amounts of content use are less likely to violate copyright rules. But it can be very tricky, and there are definite exceptions. For instance, the key take-home message in a book may be briefly stated, but considered crucial to the value of the work; also, even snippets from the lines of poems or a bit of a song lyric have staunch protections.
In addition, I learned from writer/editor Michael Hall several years ago that Texas Monthly magazine was having an increasingly difficult time getting permissions in general. Some sources are particularly tight when it comes to giving permissions. One spiritual memoir author I edited couldn’t get permission to use any Deepak Chopra quotes, for instance, and the estate of Martin Luther King Jr. is well known for refusing quote reuse.
If you’re flummoxed at this point, that’s understandable. I’ve had to explain to a professor, for example, that slightly modifying an image that was copyrighted did not make it OK to reuse (due to the professor’s confusion about the small quantity aspect of using copyrighted content). So, what’s an author to do given the complexity of copyright?
If money is less of a concern, you could hire a permissions editor to do the work for you of discerning what’s needed tracking down permissions. Plan on setting aside several months for this to be completed, and to check before hiring how they stay abreast of changes in copyright law.
Broadly speaking, a permissions editor shared in 2020 that fine art and photographs tend to cost the most for reuse, while prose, a line of poetry or YouTube or other video (by the second of film used) tend to be cheaper.
Among the things the editor (and copyright holder) will want to know about your work is how many copies you plan to publish, and in what formats. Other factors that influence the fee include how well-known the source is, and whether you’ll use more than one quote. Ultimately, several thousand dollars may be needed when seeking to obtain all the permissions for content reuse in a book that has multiple mentions of other creatives’ work.
If saving what you can matters, you could bone up on copyright and Fair Use yourself by reading backgrounders such as Jane Friedman’s 2020 article on the topic (which includes a handy graphic, example letter for querying on reuse, and background links). Regardless of such resources, be to be sure to spend time digging around for any legal aspects that may have changed after the explainer came out (for instance, there’s a book I’ve heard recommended called Self-Publisher’s Legal Handbook, but the most recent addition came out in 2017, and some aspects of copyright have changed since then).
You can also look for ways to reduce the need to seek copyright in the first place. Among the options are to:
Quote from material that’s old so that copyright laws in the U.S. no longer apply–that is, each work is in the “public domain.” Starting in January 2022, that includes most content published before 1927. However, note that something like photos that appear within a book in the public domain can still require permission (since the book author may not be the copyright holder of those). And there are wrinkles to the rules, such as if someone creates an anthology of public domain content, which can be copyrighted (likely because added work went toward deciding what was used). Stanford and Cornell universities offer more details on public domain nuances.
Use material that has a license through Creative Commons, where they spell out specific rules for reuse and often don’t require a lot to do so. There are also websites that provide content such as photos for free. Keep in mind that you may have to pay a fee for the higher resolution of images on these sites, or to credit the creator by name. It’s always kind to credit the source whenever possible anyway, as you would want done with your own work. And be sure to double check the source of content such as quotes with than one source, particularly when pulling information off the web, as people vary in how carefully they check sources.
Look for listed copyright rules when pulling content from a website, as professional sites such as news organizations may provide those. In my experience working for state clients, content from U.S. government sites is also often considered fair game as is, though the title and source should still be credited. Online content is a little bit less solidified in general regarding whether permissions are needed, but being cautious is likely wise; for instance, I know a freelance writer who paid $1,000-plus for copying a Getty image and reusing it digitally without permission (as they charge fees for their images).
Paraphrase the gist of someone’s idea, while crediting them as the source. That is, you may be fine if you put the concept from a book author into your own words, while listing them as the concept source and the source material’s title (as titles to books, movies and other content, even of songs and poems, are usable without copyright permission).
Take advantage of the fact that common sayings such as “Seize the day” and “Show me the money” aren’t copyrightable, so that’s added good news.
The take home is that, while you’re free to reuse a phrase like “Be careful with your words,” it’s wise to be cautious overall when using others’ words and more.
By Barbra A. Rodriguez