In terms of copyright law as outlined in the Copyright, Designs and Patents Act 1988, using a work online is no different to reproducing a work within a book, magazine, on TV or any other product. Material shown online and/or without a copyright symbol “©” does not mean that it is ‘public domain’ and freely available for others to reuse. Unless your use is covered by any of the copyright exceptions, failure to obtain necessary permissions can lead to several detrimental outcomes, ranging from damage to an organisation’s reputation and relationships with others, projects being shelved or withdrawn, through to costly legal implications. Therefore, where works are subject to copyright (or other related intellectual property rights) held by others, it is important to obtain consent from the rightsholder for your organisation’s intended use. These are known as ‘permissions’ or a ‘licence’.
This article will provide you with best practice guidance for clearing rights to use others’ works online, allowing you to identify which works require permission and how to go about it.
Copyright automatically covers a wide range of original creative works including paintings, sculpture, photography, sound recordings, digital works, text and films. This gives the copyright holder the right to decide how and where the work is used and the option to charge usage fees for that use should they wish.
In most cases, copyright lasts up to the end of the 70th year after the creator’s death, so for example Pablo Picasso died in 1973, therefore his work is protected by his copyright up until midnight on 31st December 2043.
In the first instance the copyright holder of the work will be the creator (e.g. the painter, photographer, author) and will then pass to their estate upon their death. However much like any other property, copyright can be assigned or sold to another party.
Again, there are exceptions to copyright ownership, for example copyright in work produced as part of an employee’s job will usually be held by their employer. Therefore, if an organisation has in-house photographers, copyright in photography they create within their roles will be owned by the organisation. Conversely, if an organisation commissions external photographers, the photographer will retain copyright of their photographs unless there is an agreement determining otherwise. It’s important to note that ownership of a work is not the same as ownership of the rights within that work.
Some works can be subject to rights held by multiple people, providing that each party contributes a substantial amount of creative input. Similarly, a single work can include several different layers of copyright applicable to component parts, each held by different people. For example, a single song could include copyright within the lyrics held by the lyricist, copyright in the music held by the songwriter, copyright in the arrangement held by a composer as well as copyright in the sound recording held by the producer. Each of the musicians that feature on the song would also hold performers rights. Although many rights holders will assign rights to publishing companies or allow rights to be cleared collectively on their behalf through collecting societies such as PRS for Music, in theory permissions from each of those rights holders could need to be obtained individually.
This is frequently the case in photography of artwork or other museum holdings. In instances where the artwork itself is subject to the artist’s copyright, permissions would be required from the artist, their estate, or their representatives. However, the photography of the artwork may also be subject to copyright and other contractual restrictions or terms & conditions which would necessitate obtaining additional permission from the photographer or the organisation that created the photograph. It’s important to remember that even if copyright within a featured artwork may have expired, there may be other restrictions associated with any photography of that work.
There are many different routes that can be taken when trying to identify and locate appropriate rights holders. The order through which you may try these and the effectiveness of each will depend on the type of work and the information you have available although these will provide you with several pragmatic options:
- Captions and credit lines used alongside previous uses of works by the same creator within publications or online will often list the source, allowing you to search further.
- Google image search or specialist image recognition software such as Picscout or TinEye can be helpful.
- Living creators will often have representative galleries or agents that can provide permissions on their behalf or will have their own websites through which they can be contacted. Upon their death, high profile creators may have charities, foundations, museums, or libraries established in their name which may also hold or look after the copyright in their work.
- The Watch File (Writers, Artists and their Copyright Holders) is an extensive database of contact details for rights holders jointly managed by the Harry Ransom Center, Texas and the University of Reading.
- Other institutions that hold, have used, or have borrowed works by the same creator will keep extensive records of rights holders, and where authorised can pass these on to third parties. These can include museums, galleries, libraries, auction houses, publishers or private collections. Similarly, many artists, authors and academics work at, or are affiliated with universities, so may be contactable through the universities’ staff pages.
- Picture libraries and other content licensing agencies are able to provide files for use. They should also be able to highlight where additional permissions are required and provide contact details where possible. In some cases, they may also offer copyright clearing services on behalf of some artists and photographers.
- There are many collecting societies that take on the administration of reproduction requests on behalf of their members. These will usually be focussed on a specific type of media, for example DACS works on behalf of visual artists, whereas PRS for Music represents musicians. Several collecting societies are included in the Further Useful Links section at the end of this article.
- If a work was created specifically for an organisation, it is possible that they may have been assigned the copyright in that work or hold the copyright as the creator’s employer so are always worth contacting.
- When hoping to use others’ text, even though authors retain their copyright, in many cases, while the title is in print the authority to grant re-use permissions will be held by the publisher. Most publishers have a dedicated rights department that look after re-use requests.
- If you are struggling to locate living artists and authors, it can be helpful to consult online directory enquiries in the country they are likely to live in or you may also consider taking out adverts within relevant trade magazines. The official UK public records database, The Gazette, can also be helpful in identifying estates.
When contacting rights holders there are several areas to consider that will help you obtain the permissions you require.
It can be helpful to research the rightsholder before you contact them, you can then try to tailor your approach to align with their priorities, beliefs, and objectives.
It is advisable to avoid including assumptions within your correspondence such as considering permission as having been granted if you don’t receive a response by a certain date. This has no basis in law and can be seen as presumptuous or untrustworthy and risks annoying the rightsholder. In turn this can increase the likelihood of your request being denied or larger fees being quoted.
Always ensure that permissions are granted in writing. This will guarantee that those permissions can be consulted whenever needed and limit the possibility of any disagreement further down the line.
It’s always better to ask the rightsholder to sign permission documentation drafted by you if possible as this will ensure that you have the permissions you need and you are clear what has been granted. However, many rightsholders, particularly those with well-established commercial licensing operations, may not agree to this and insist that the use is determined by their own paperwork. If this is the case don’t worry but make sure that you can adhere to the terms outlined and don’t be afraid to query anything you either don’t understand or are concerned about agreeing to.
There are instances where obtaining permissions may not require contacting a rightsholder directly. Many not-for-profit organisations allow free use of their content created through the application of Creative Commons licences, or their own bespoke access policies. These will be outlined on the organisations’ website. Remember that each organisation will have different policies, and terms may only apply to some content. Different organisations may also have a different understanding or evaluation of your project so if in doubt it is wise to clarify with them before using their works.
Naturally all of this can take considerable time, staff resources, and budget so it is imperative that these are accounted for at the outset. Rights Holders may take longer to find or longer to respond than you hope. They may also require further discussion or have concerns about your intended use that may necessitate further discussion so it’s essential to allow plenty of time to address clearances before your project’s intended launch date.
The terms on which each rightsholder allows their work to be reproduced may also vary significantly. Some may be happy for their work to be used freely by your organisation while others will expect fees to be paid and/or insist on restrictive conditions. Therefore, it is useful to establish both an average fee per work and a total budget for clearances that you are prepared to pay for the project at the planning stage. If a rightsholder refuses to grant permissions for your requirements or quotes usage fees outside of your budget don’t be afraid to reconsider your options. Remember a rightsholder also always has the option to withhold permissions.
When clearing usage rights, it is essential to keep any correspondence relating to the request, including any emails or letters that do not receive a response or are refused. It is sensible to keep a spreadsheet or database of all actions for each project, this should include the following:
- When, how and from whom you have attempted to get permissions.
- Rights Holders’ contact details, as far as permitted under the Data Protection Act 2018.
- Whether permissions have been granted or refused.
- The required credit lines and captioning information.
- Whether approval of the layout is required.
- What restrictions or usage limits apply to your use of the work.
- Any further obligations required by the rightsholders.
- What fees are due or have been paid.
This will ensure that you have a comprehensive overview of all permissions required for your project, enabling you to keep track of your progress systematically, fulfil the terms of the agreement and monitor any renewal requirements.
There will be occasions where the creator of a work cannot be identified, or their estate can’t be located, these are known as Orphan Works. Consequently, it can be tricky to decide how best these works can be used appropriately or result in these works being hidden away in archives and storerooms. Organisations have two options when hoping to use orphan works:
The first is to consider whether to proceed on a risk assessment basis. This is certainly not an exact science and will depend on your organisation’s appetite for risk. Whether you go ahead with the use of an orphan work without permission should be judged on a case-by-case basis. The type or work, the nature of the use and the likelihood of a rightsholder coming forward or objecting to the use should all be considered.
Before deciding to proceed on a risk management basis it is essential to evaluate how you will respond to a valid rightsholder coming forward in the future. This should include publishing a clear “Take Down” policy and formulating general responses in advance. You may also wish to include disclaimers explaining that you have unsuccessfully made all efforts to identify and contact the rightsholder and now believe the work to be an orphan work, include appropriate credit lines and keep funds aside to pay for rights retrospectively if required.
Another option is to obtain permission via the UK Orphan Works Licensing Scheme. This was introduced in October 2014 to allow for legal use of all types of orphan works in exchange for both administration and licensing fees based on the type of use. Licensing fees are collected and held for the rightsholder should they ever be found. It is important however to note that the Orphan Works Licensing Scheme can only grant rights for UK uses and for up to seven years.
In both cases it is crucial that you conduct due diligence. Broadly speaking this means that you have made all reasonable attempts to identify and contact the rights holders. Again, this is why it is so important to keep thorough records of your efforts. Consistency is also important here; you may wish to establish guidelines on how many sources you contact and how many times you try to get in touch with them before proceeding with a use. The Intellectual Property Office also provides further helpful guidance on conducting due diligence.
The Orphan Works Licensing Scheme will not grant any permissions without the requestor having conducted due diligence and submitting this beforehand. It is also prudent to conduct the same level of research to proceed on a risk assessment basis so that you can demonstrate that you have used the work in good faith should an objection ever be raised.
UK Copyright law is a complex area and understandably the practicalities surrounding it can be a daunting prospect for many. There are also many misconceptions and myths that persevere to make things a little more confusing. However, whether large or small, organisations within the heritage sector create their own copyright, use the copyright of others, and have a responsibility to respect and protect the copyright of others represented within their collections. In short, copyright informs and impacts on everything we do.
Accordingly, it is difficult to understate the importance of establishing best practice rights clearance procedures for the use of work created by others. Although this can of course appear overwhelming, approaching rights clearances systematically using this guidance and allocating appropriate time and resources will ensure that you are able to clear permissions efficiently and protect you from damaging relationships or legal issues further down the line. More positively clearing rights effectively will maximise the potential and reach of your projects’ to the mutual benefit of creators, your organisation, and your audiences.
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Please attribute as: "How do I find rights holders for content I want to share? (2022) by Chris Sutherns, Naomi Korn Associates supported by The National Lottery Heritage Fund, licensed under CC BY 4.0