Using Someone’s Work

CraftsLaw064Getting permission. Often crafts artists borrow from other people’s works — for example, a photo may be the basis for a silkscreen design. The consequences of failing to get permission can be expensive. The risk of a lawsuit depends not just upon your particular use, but upon other factors such as the likelihood that the use will be spotted, whether you are a “worthy” target for litigation, whether permission is really needed  and whether the party from whom you borrowed is inclined to sue. But even if you don’t get sued, there’s always a potential risk when you fail to ask for permission to use someone else’s work. You may not have to pay damages, but you may have to destroy inventory, molds or accompanying promotional material. The more successful your crafts business becomes, the more likely that a copyright owner will learn of your use and take action. In summary, a conservative approach to using material created by others will best protect your crafts business. Unless you are certain that the material is in the public domain or that your use is legally excusable, you should probably seek permission.

What does it take to acquire permission? The first step is to determine whether you can use the work without asking for permission. Permission is not always necessary, because copyright law does not protect all materials. For example, works published before 1923 in the United States are in the public domain and free to use. However, a work is not in the public domain simply because it has been posted on the Internet (a popular fallacy) or because it doesn’t sport a copyright notice (another fallacy). Learn more about the public domain. Occasionally, a crafts design may qualify as a fair use but be wary in asserting this right as proving a work qualifies as a fair use requires a court decision. Learn more about fair use.

The second step in getting permission is to identify the owner of the work you want to use. Often, you can locate the rights owner just by looking at the copyright notice on the work. Sometimes, more detailed research is required, for example, searching the records of the Copyright Office.

The third step in getting permission is to identify the rights you need. Identifying the rights can be as simple as stating your intended use—for example, you’d like to reproduce a photograph on postcards. Generally, you will need to consider three common rights variables: exclusivity, term, and territory. Most permission requests are nonexclusive, meaning that others can use the material in the same way as you. An exclusive permission agreement means you are the only person who has the right to use the work as described in the agreement. The length of time for which the use is allowed is often referred to as the “term.” If there is no established limitation on the use, you are allowed to use the material for as long as you want or until the copyright owner revokes the permission. Your rights under a permission agreement may be limited to a certain geographic region, referred to as the “territory.”

The permission agreement. Once you identify the owner and the rights needed, it’s time to contact the owner and ask for permission. The primary issue that arises when seeking permission is whether payment is necessary. Sometimes the owner of the work will not require payment if the amount being used is quite small or if the owner is eager for exposure. Sometimes, an owner may agree to suspend payment until your crafts project becomes profitable, or the owner may condition payment on other factors. Finally, you need to formalize the arrangement. Oral permission agreements are legally enforceable. Moreover, even if you have no explicit oral agreement, you may still have a right to use a work if permission can be implied from the way the parties have behaved.

Example: Lou, a jeweler, asks for permission to reproduce Tom’s photo within ten pendants. Tom responds that he will grant permission for $100. After receiving the payment, Tom sends the photographs to Lou. A permission agreement may be implied from Tom’s conduct.

 That said, relying on an oral or implied agreement is often a mistake. You and the rights owner may have misunderstood each other or remembered the terms of your agreement differently. For that reason, written agreements are preferable. These need not be formal or in legalese. A simple statement of permission signed by the person granting permission is usually suitable.

Work for hire/assignment. It’s also possible to hire an artist or other creative person to create a work for you. If the creative person qualifies as your employee, you will automatically own all rights to the work created on your behalf, and no permission will be required. If the person creating the work is not an employee, he or she is an independent contractor, and your ownership of the contractor’s work is not automatic. To guarantee your ownership of an independent contractor’s work, you should use either a work-made-for-hire agreement or an assignment agreement.

You may need other permissions. Permission is sometimes needed to reproduce a trademark or to use a real person’s image. A trademark is any word, symbol or device that identifies and distinguishes a product or service. Permission is generally needed if your use is commercial and is likely to confuse consumers or to tarnish the trademark’s reputation. Your use of an individual’s image or name may require permission if you are implying a commercial connection between the individual and your product. For example, you will need permission to include a celebrity’s image on a belt buckle or in an advertisement. We provide sample model releases here.