THE PERMISSION FORM
Ivan Hoffman, B.A., J.D.
Whether you are a publisher,
author, web site designer, site owner or otherwise, you may find yourself in the
position of having to request permission to use protected materials belonging to
“Protected materials” means materials protected by the copyright,
trademark, unfair competition or other laws or judicial decisions of the
The Issues to be Faced
Among the rights you want to seek are rights in all media, all languages, all editions, throughout the world, in perpetuity including the right to change, edit and adapt the protected materials. If you intend to use these protected materials on a web site or in social media, then you want to seek rights to use those materials in this and all other media as well.
Additionally, you must acquire the right to assign and transfer your rights to another party. If you intend to make deals of any sort, you must have this right.
should of course be representations and warranties from the party making the
license that in fact they have the right to make that license and hold you
harmless in the event it turns out not to be so.
If you are a publisher, whether
of books, a web site or otherwise, or you are any party that is not the author,
and the author seeks to include “protected materials,” your agreement with that
author or designer or other party must clearly state that it is the author or
designer or other party’s responsibility to obtain all required permissions at
their own expense.
An important note: you must be certain that you, as the publisher,
supply the permission form to be used so that you, as the publisher, are
Keep in mind that a publisher who publishes an infringement is liable as an
infringer as much as is the writer or designer who wrote or created the
If you do not have such a permission form to provide your authors or
designers, then you should seek legal assistance from an attorney with
experience in these matters.
Clearly, all these provisions must be embodied in an appropriately drafted, written agreement and that agreement must be signed by the owner of the rights.
The Restrictive License
Often the publisher or other requesting party is presented with a form submitted by the owner of the protected materials. That owner will want to license far less rights than the publisher or other party may desire or need in order to fully exploit the work. The publisher or other party, upon being presented with such a form, should have it reviewed by an attorney with experience in these matters since many of the restrictions contained within it may be subtle and the publisher or other party may not appreciate the full impact they may have upon the ability to make exploit and make money from the work.
Clearly one issue to be faced
is that of money.
Most often, unless a protected material is absolutely essential to the
work, if an owner asks for money for the use it is often best to simply not use
that protected material and find a substitution.
However, there are often other restrictions placed on the license of protected materials, which other restrictions may be far more onerous. These restrictions are often time limitations, territorial limitations, language limitations, limitations on the edition for which the permission is licensed, media limitations and other such restrictions. All of these limitations should be avoided and if the license to use the protected materials comes with these “strings” attached, the publisher or other party should strongly consider avoiding using that protected material and find a substitute. These restrictions can be quite troublesome and materially interfere with the ability to exploit the work fully. (Read “Look Before You Sign: Restrictive Licenses.”)
As in all things, timing is everything. These permissions must be sought very early on in the writing or creation of the work so that if difficulties arise, the author, designer or other party can work around the need for some particular protected material. By the time the work is ready to go, all of these permissions must have long been obtained. Once a book or other work is published, the ability to obtain the rights necessary diminishes rapidly and the bargaining position of the party changes radically. If you are an infringer, you have much less power to make a deal that is in your best interest.
Copyright © 1999, 2018 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.