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WHEREFORE THOU ART #48
Artist alert!

As I've written here several times in the past, if you've created works and are going to be performing them in public, posting them on the web, distributing copies, or otherwise sending the works out into the world, you should seriously consider registering your copyrights to the works with the Copyright Office. You own the copyrights to a work upon the work's creation in a tangible form, but registration gives you some enhanced ammunition should you ever have the need to sue somebody for infringement. And, really, don't mail yourself a copy of your work and think you're somehow protected. You're not. Just go register with the Copyright Office.

But not right now! The CO has just announced that it's finally going to join the modern age and start accepting applications over the internet. It's supposed to happen some time this summer. It's about time. The CO has had odd policies for accepting applications-for years, applications sent via the US Mail were embargoed in a warehouse and held for anthrax screening. Applicants are still advised to instead send applications via private courier services like UPS and Federal Express to avoid the delay, which makes absolutely no sense, but there you go.

The CO hasn't made any promises, but internet filing will most certainly speed up the registration process. Registration of copyrights is largely a ministerial act, with the examiners doing little more than confirming that the simple application form has been correctly and completely filled out, and making sure that the thing submitted is indeed the sort of thing that copyrights are granted for. Not a big lift, but it's still been taking 4-6 months to get a registration certificate for a simple, single item application. This can be extremely frustrating when you need the registration to pursue an infringement claim. I'm counting on electronic registration will cut the wait by more than half.

Maybe the biggest benefit from this is that internet applications are going to cost $35.00, a $10.00 savings from paper applications. If you've got a bunch of things to register that don't qualify for a group registration, this can mean some substantial savings. And if you do qualify for a group registration (all works must be unpublished and the same general type of work), you can register an unlimited number of works (and get individual protection for each work) online for $35.00. That's a real bargain. And you don't have to leave the house!

I've gotten three calls this week from folks wanting to know the rules about using short excerpts from existing works to dress up a new work. Using a one or two sentence quote from a literary work or film script to introduce a chapter of a book. Flashing a piece of a movie trailer or movie still as a transition marker in a documentary film. Can we do this? Do we need permission?

Well, yes, you do need to get permission for these sorts of uses. It is the convention in both the literary and film industries that permissions get secured for even minor and incidental uses of existing copyrighted works.

Frankly, this is nonsense. The fair use doctrine generally allows adaptive reuse of existing works where the new use is transformative, and where the new work doesn't supplant the original in the marketplace. Traditionally, fair use protected reuses primarily in commentary and criticism-in order to talk about a literary or film work, you often need to be able quote from the work to demonstrate your point. In this light, fair use is really an adjunct of the freedom of speech. But the doctrine of fair use has been expanding in recent years, pushed by the prevalence of "remix culture", appropriation art, and the fact that cultural icons, prime subjects of artistic pursuit, are often commercial properties as well. The trend in the courts appears to be an emerging understanding that fair use must expand to include not just commentary, but other types of creative and transformative uses, where parts of existing works are expressive building blocks in wholly new creative works. But trends like this emerge over long periods of time, and this "adaptive reuse" prong of fair use has gained traction primarily in fine art, and not so much in the literary and film worlds. And the law certainly hasn't evolved to a point where I'd recommend that anybody just go and start using literary excerpts and film clips without permission.

The problem with fair use is that it's a fuzzy doctrine, and it's a defense to a charge of infringement. So a deep-pocketed copyright owner, like a literary house or movie studio, can drag a reuser into court, cost the reuser a lot of money, and maybe even hold up the release of the reuser's new work, while the reuser has to spent time and money to establish his or her fair use entitlement.

To avoid this, it is the better practice (albeit maybe the cowardly one) to try to get written permission to use quotes and excerpts. It's a pretty onerous, as you are left at the mercy of the copyright owner, who can simply say no, or charge such an astronomical licensing fee that the reuse makes no since economically.

How do you get permission? First, you'll need to identify the copyright owner, typically the publishing house for a book, or movie studio for a film. For an older work, this may take some digging, as these entities may have merged with other companies or gone out of business altogether. Good luck.

Send a letter to the legal department. If the company's small, there may not be one, but at least you're signaling on the envelope that you have something important to ask.

The first thing you'll need to do is establish your bona fides. A licensor of intellectual property will be much more inclined to grant you permission to use an excerpt if it's relatively clear that the new work is going to actually be seen by somebody. If you've been previously published, if you've won any awards, if you've gotten good reviews, say so. If the project you're working on has distribution, say so. If you've got an impressive background, attach a resume or curriculum vitae.

Then tell them exactly what you want to use and how you want to use it. Tell them why the excerpt is important to the new work. If you have a mock-up of the excerpt in the context you want to use it, attach that.

Finally, tell them you'll give them full credits as per their instructions, and would gladly entertain the paying of a modest licensing fee (unless, of course, you wouldn't).

Now you send the letter and wait. If you are able to find inside e-mail contact info for the publisher / studio, send it that way. For larger organizations, I wouldn't bother sending the letter to a general email address, but if you can get a departmental or individual contact, use it. If not, go with snail mail.

Don't expect a response for at least a couple of weeks. If you haven't heard anything in 2-3 weeks, try a follow-up phone call or e-mail. If 4-6 weeks have passed, and there's no response, you can consider no answer to be a "no" answer. But then, you might get surprised. Often, the publisher or studio is obligated to check with the actual creator of the piece, and these things can take time.

Yes, it's a pain in the neck, but try to look at it as an adventure. Babe Ruth struck out a lot, but he also hit some home runs.

© 2007 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.