Do You Really Need Permission to Use That Quote?

SUMMARY KEYWORDS

copyright, author, quote, copyright holder, book, permission, infringement, people, writing, copyright law, factors, citing, song lyrics, canada, public domain, biggest misconceptions, case, licence, understand, canadian

Introduction (various voices) 00:03

Welcome to the Empowered Author podcast.

Discussion, tips, insights and advice from those who’ve been there, done that, helping you write, publish and market your nonfiction book.

Being an author is something that you’ve got to take seriously. 

I’m proud I’ve written a book.

What does the reader need, first? What does the reader need, second?

What happens if you start writing your book before you identify your “why”? What’s the problem with that?

If you’re an indie author, you take the risk; you reap the rewards; you are in charge of the decisions; you’re the head of that business.

Know that every emotion you’re feeling when you’re writing is felt by every other writer.

The Empowered Author podcast: your podcast hosts are Boni and John Wagner-Stafford of Ingenium Books.

Boni Wagner-Stafford 00:53

Well, here we are: another episode of the Empowered Author’s podcast. Today we’re going to talk about something absolutely scintillating. I know many people think it’s kind of dry but it’s important, I think, and that is permission to quote, and copyright issues. So what we’re talking about: I’m sure that you have read books – because it’s very common – where the author has used quotes from someone else, usually someone famous or notable. And often you’ll find them at the start of chapters or, you know, sometimes you find them elsewhere. And then as an author, I’m sure you have been tempted to – or perhaps you already have – decided you want to include some of these quotes as well. Totally fine. But the question is, and what we’re going to dig through today, is: do I need to secure permission? If I do, how do I do it? And then in the middle of all of those is, what are the risks if I don’t actually formally secure permission? So joining us for this episode is Erin Gurski who is a Canadian – yay, Canada! – copyright professional, who currently works as a teaching assistant for Copyright laws.com. And, Erin, you’ve also been a copyright officer and advisor for intellectual property at the Canadian Museum of History in Gatineau, Quebec, and you were executive director and licensing agent for Copyright Visual Arts, which is a national Canadian nonprofit. So thanks for joining us.

Erin Gurski 02:29

Thank you for having me.

Boni Wagner-Stafford 02:31

So my first question is: copyright, copyright and permission to quote, is this something that you find fascinating, or, or what? Many people’s eyes I think might glaze over on this topic.

Erin Gurski 02:47

I think I was originally the same. I kind of fell into the copyright world accidentally: I was a research assistant on an exhibit and I was on contract and my contract was up and the advisor of intellectual property handed me a contract in the hallway and said, “You’ll have a job tomorrow if you find this.” So it was completely by accident. And I knew nothing about copyright before I started that position. Other than that it existed. So I understand the, the eye glazing. That’s totally understandable. 

Boni Wagner-Stafford 03:21

And then talk about a baptism by fire.

Erin Gurski 03:23

Yeah. Yeah, it was definitely. It was a huge learning curve. That was about six years ago now. So I’ve been working in the field ever since. So clearly, I found something about it that was interesting. I’ve worked in it, you know, for over five years, and I’m still going. I’ve really enjoyed working for Lesley and I’m still learning more every single day as I work with different – different people that have copyright issues in different sectors of the economy. And, you know, the creative sector, so yeah. 

Boni Wagner-Stafford 03:57

Cool. Very cool. So, I wanted to kind of emphasize the reason that I think it’s important that authors talk about, become more comfortable with issues around copyright: it – I mean, it’s directly related, in my opinion, to being empowered, feeling empowered, and having confidence that you’re doing the right thing, that you’re not going to get yourself into any legal trouble. And also, on the flip side of that, it’s understanding what your own rights are. You know, what if you are reading a book and you find that someone has included a quote from your own work and you haven’t been approached for permission. So, you know, I think it’s important that we find places to be comfortable and confident as we move forward in our author career. So that’s a bit of the rationale. So maybe we can start by talking about what some of the biggest misconceptions are that authors may have in – and I know you don’t only work with authors – but what some of the biggest misconceptions are around there about copyright and permissions to quote?

Erin Gurski 05:17

Sure, I’ll pick up on what you said about looking at it from two different perspectives. I think that kind of the point of copyright, right, is to find a balance between the users and the creators. And so that’s why we have exceptions, such as the right to quote in the act, because the hope is that, you know, you can find that middle ground where creators are still being remunerated. But also, users are able to not worry about having to go to jail if they use somebody else’s work. 

Boni Wagner-Stafford 05:51

Right. 

Erin Gurski 05:52

So I should just preface this – although I’m sure it’s not completely necessary – but just was saying that I am not a lawyer. So nothing to say in this podcast will be legal advice in any way, shape, or form. 

Boni Wagner-Stafford 06:04

Yeah, neither am I. 

Erin Gurski 06:06

Okay. Excellent. So, nobody take this as legal advice. 

Boni Wagner-Stafford 06:10

Yeah.

Erin Gurski 06:11

This whole conversation. So I think that the biggest misconception, not only in writing, but in all areas of copyright is the idea that as long as you’re not super commercially successful, that you can basically use whatever you want. And, you know, chances are, it won’t be noticed. That’s especially an issue with, I think, writers who are at the beginning of their careers, especially if they’re in university, or, you know, just past university: there’s often this idea that, “You know, I’m just starting out.” And they think that a fair dealing or fair use, those kinds of exceptions can be used, very liberally, which is not often the case. There are – there are certain rules to being able to claim.

Boni Wagner-Stafford 07:04

Yeah, I want to talk about the fair dealing and fair use – what those are and what the differences are – in just a moment. But what about the notion of it being okay, as long as you give credit?

Erin Gurski 07:21

Yeah, that’s, that’s a very common argument that’s used. I’ve actually just had a friend be contacted by a creator: they run a blog and they had used a photo without properly crediting it. And they were indeed contacted by the creator saying, “Listen, you have to credit my name on this.” And it’s the same thing with quoting from literary works, or cinematic work. So what have you is that goes even further than copyright, which is moral right: which is the creator’s right to have their name associated with their work. And often moral rights are – at least in Canada and especially in France – are even more strict than copyright law itself, so … 

Boni Wagner-Stafford 08:12

Right. So that’s – I’m glad you raised that, where, you know, we’re talking about authors, and so most common in there is the written word, but as authors – you know, and I work with authors all the time: I’ve got one author I’m working with right now where she’s, she wants to have these little icons, as breaks within her chapters and the icon fits with the theme of her book. And, and I had to say, “You know, we can’t just – we can’t just have you go and screen capture some icon that was … We have to make sure that we have the right licence,” and she was like, “Oh, I don’t want to have to do that.” So it’s the same principle: is to be cognizant that our creations in whatever form are intellectual property and they are protected by copyright law. And, you know, we’re not going to get into the differences internationally, but – the Berne Convention and all that kind of stuff – but we are, you know, going to try to drill down into this permission-to-quote thing. Let’s pause for a moment for a message from our sponsor.

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Boni Wagner-Stafford 09:51

When … When we start to try to think about how an author can think about whether this quote that they want to use and whether it’s one sentence or ten sentences – and maybe that’s one of the decision-making factors – but how do they decide whether this quote needs advanced permission? What are some of the factors?

Erin Gurski 10:19

That’s a great question. And it really is all about risk assessment and understanding how – because the only way to fully determine if something is fair dealing or fair use is to take it to court. So hopefully, what you’re trying to avoid. So they have certain factors within the Canadian Copyright Act – and within other acts internationally as well – that basically lay out, if you were to go to court, what would be the factors that they would be looking at in order to determine whether this was an infringement or if it falls under some kind of exception. So specializing in Canada, some of the factors include the purpose of the use. So if it’s used – the main one is if it’s used commercially or non-commercially. But if you’re talking about authors, chances are their book is going to be sold. So you do have to assume that the use would be considered commercial, even if you’re not selling your book for very much. 

Boni Wagner-Stafford 11:24

Right. Or not selling very many. 

Erin Gurski 11:26

Yes. Yes, exactly. Which is, you know, unfortunately, the case for many authors is they may only sell 50 copies of a book, but it’s still commercial. 

Boni Wagner-Stafford 11:38

Yeah.

Erin Gurski 11:39

Yeah. Another section that they might look at is the character of the use. So if its use is meant for widespread dispersion throughout society. So if you’re looking at a book that you know is going to be published and made available in a Chapters bookstore, and throughout Canada, or globally, or made into an ebook that can be downloaded from anywhere, that is a very wide net that you’re casting; whereas if you were to take a quote and put it in an email that you’re sending to your mom, or, you know, a draft, and the quote doesn’t end up in the final version, and the draft is only sent to your editor or your beta readers, then that would be a much smaller use and less risky, in that case. They also look at the amount that’s used. So like you mentioned, one sentence or ten. And the thing to remember there – educational institutions, in particular, have really had to struggle with this in terms of how much is it okay to quote – and it’s not so much about the quantity, although that is part of it: you don’t – you want to avoid, say, quoting an entire chapter of a book that, you know, that would be significant; but it’s also about quality. So if you were to – it’s easier to explain that in terms of like a song: if you were to quote the chorus, that’s kind of the heart of the song and that would be considered different than if you were to quote, you know, line two in verse one. So that would be considered a different risk, essentially. If you have different alternatives that you could have used, that were maybe public domain or less risky, that would also be a consideration. And finally, the effect on the market value. So if you’re quoting significantly from, say, a text on the biology of chimpanzees and you’re selling in the same market as the person who wrote the original text, that could be considered competition in terms of their share of the market. So those are the – kind of the main factor.

Boni Wagner-Stafford 14:19

So the … It sounds like – you know, and risk tolerance is something that’s different for everybody, but – and maybe before I go down that road, what do you think this has to do with credibility?

Erin Gurski 14:40

Yeah, so I think especially if you’re talking about nonfiction, you know, there is a certain credibility that you gain within the industry, that you’re known for properly citing where you get your information from, especially if it’s from colleagues who work in the same field as you. You’re all supposed to be – yes, you’re kind of competing with each other, but you’re also supporting each other, right? So you want to make sure that you have a reputation for being fair and not quoting something and then claiming it as your own work, or quoting it incorrectly and citing somebody else for that work. And so I think that it can have a really negative effect on one’s reputation if you decline to follow these sort of guidelines. And something similar, actually – I just read an article in The Guardian, that there’s an issue with this in poetry, in particular – is, there’s an idea that, you know, you can take the feel and kind of general sense of a poem as inspiration and write a new one. But where is the line between taking that feel and that, that style and then rather than creating, you know, a poem that is so closely based on another one, that it, it borders on infringement? 

Boni Wagner-Stafford 16:12

Right. So you raised another really good point – and I just want to make sure that we’re clear about this for our podcast listeners – which is, when we’re talking about permission to quote: what I’m talking about when I’m saying permission to quote is when you are excerpting the words of someone else, or using someone else’s creative – creative, intellectual property. Citing and citations are still required, and especially in nonfiction – and at Ingenium Books, we work almost exclusively with nonfiction – but so the difference there is if I have gone and – you know, most of the work that we do at Ingenium Books, because it’s nonfiction, involves some kind of research where you’re gathering information and then you are writing in your own words but you still need citations to say where the original source of the of the, of … The foundational research information. So that’s not really what we’re talking about. You gave me an idea for another discussion on how to do that. But back to the permission to quote: one of the – before we get into the how-to’s, one of the things in addition to quotes, you know, whether it’s an inspirational quote from somebody by like Brené Brown or something like that, is song lyrics. “Oh, I want to include the lyrics from this song.” It’s like, I always, “No,” and I, I discourage my authors from even going down the road of attempting to secure permission for song lyrics. Whether this is true or not – and I guess I’ll ask you – is, is I had read somewhere and seen in some research somewhere that songwriters and music artists are actually very well organized around the issue of protection of their intellectual property rights. And so the likelihood, your risk is greater if you use song lyrics than, you know, some other quote from Chapter 72 of, you know, what’s-his-name’s book. But and that’s partly because I think they’ve been exposed to the infringement issues, you know, starting way back decades ago with Napster. And so they’ve become a little better organized around protection of their intellectual property rights. Is there anything else I’m missing in there? Is the process any different or the consideration any different if it’s a song lyric versus some kind of a quote, text quote?

Erin Gurski 19:03

Well, I think you hit the nail on the head there in that they have been much more exposed to the idea of infringement. Unfortunately, because, you know, music is so easy to share, that you have run into so many situations where singers have not been paid for the use of their songs. And so it’s really become an important issue in the industry: is to ensure that copyright is being reflected. And so I think, in terms of risk assessment, that is something you have to bear in mind. It’s not one of the factors that, you know, court will use to decide if it’s fair use or fair dealing but risk assessment is so huge because if you’re talking about something that is particularly well known, chances are that person or people or whoever is the copyright holder of that material is likely be much more in tune with copyright and all of its intricacies. And, and probably has a team making sure that nobody is infringing their rights. I mean, you see this all the time. With, say, Disney as a corporation, for example, they are famous or infamous, for going after even the smallest uses of their copyrighted material or copyright protected material, because they’re big and they’re powerful and they have the money to spend to go after, you know, the – Bob around the corner that has created a quilt of Disney princesses and is trying to sell it in the local store. They are able to come down hard on even such a small use. And I think you do find something similar, especially with well-known artists, but more so with indie artists as well, because they’re starting to really understand what their rights are and what they – not that they’re obliged to approve of, but rather, how much they can insist that people respect their rights as far as songwriting and song lyrics are concerned. 

Boni Wagner-Stafford 21:17

Yeah. Yeah. Okay, cool. So, what about the process? Process? I always forget which Americans pronounce – which one – which pronunciation is the America– I deal with so much with American authors and I forget what my native Canadian pronunciation is. But anyway, whatever. What are the steps that we want to suggest that authors go to in order to secure permission? And is there a, you know, something that they need to make sure they do? What would your advice be?

Erin Gurski 21:51

Yeah, so definitely take a look, first, at the work that you’re using and just make sure – I mean, this might seem obvious – but make sure that it’s not coming from a public domain source. Because so many of the famous quotes that people use on a regular basis are in public domain. You know, if it’s anything, say, Jane Austen-related, that’s not protected anymore and so you don’t have to worry. 

Boni Wagner-Stafford 22:20

In other words, public domain, meaning you – it’s free to use?

Erin Gurski 22:23

Yeah. Yeah. Copyright …

Boni Wagner-Stafford 22:24

You don’t need your permission. Yes.

Erin Gurski 22:26

Exactly. So copyright permission or copyright has expired. One caveat there is that – I spoke briefly about moral rights previously – and so something to remember is that, whereas in most countries, the idea of a moral right – so the copyright holder having to be cited or, you know, you have to name who the copyright holder is in relation to their work – in most countries, that expires when copyright expires, but in France, it’s perpetual. 

Boni Wagner-Stafford 23:02

Right. 

Erin Gurski 23:03

And there have been many cases of the estate of long dead authors coming after people for not properly quoting their ancestor. So just something to bear in mind. 

Boni Wagner-Stafford 23:17

Right. And then just another – sorry to walk on you there. Something to clarify before we move into the next steps are the public domain of work passes into the public domain, either 50 or 75 years, for the most part, after the death of the copyright holder. It is not 50 or 75 years after the work is published, it is after the death of the copyright holder. And that 50 versus 75 years really depends on the copyright legislation in the country of the author’s origin.

Erin Gurski 23:53

Yes, exactly. So it’s 50 years in Canada, although we will – I think in 2023, we’re going to 70 years. The US is 70 years. Mexico is actually 100 years, which is interesting.

Boni Wagner-Stafford 24:08

Oh, interesting. Wow. 

Erin Gurski 24:12

Yeah. So, and most of the countries that have signed on to the Berne Convention are 70 years. Most of the EU is 70 years. So …

Boni Wagner-Stafford 24:20

Right. 

Erin Gurski 24:21

Yeah, so just bear that in mind. But so just to – yeah, to continue about getting permission: if you determine that it’s not in the public domain and you’ve looked at all of these factors that I mentioned before – one I think that I’d forgotten is the nature of the work, so if it’s a creative product versus a fact or information, there’s a difference there as well. So if you’re saying, you know, “World War I began in 1914,” you don’t – it doesn’t matter if somebody wrote it exactly like that previously; that’s just a well known fact, and you don’t have to worry about adding an author to that. 

Boni Wagner-Stafford 25:03

Right. 

Erin Gurski 25:04

But if it’s creative, if it’s something that somebody has crafted and it’s not well known and it’s, you know, doesn’t matter if it’s well written or not, if it is a sentence that they have crafted or paragraph that they have crafted about a certain subject, then that is something you would have to bear in mind as well in terms of your risk for infringing copyright. But all that understood, if you’ve looked at all these factors, and you’ve decided, “This is a little risky. You know, I think it’s better to get permission than to worry about the possibility of getting in trouble for infringement,” the first step would be to go to, essentially, the first point of contact for that author-creator’s work. So for, for an author, it would likely be the publishing company because depending on the agreement the author has signed with the publishing company, chances are the publishing company is the one that is handling the copyright concerns about that book or that …

Boni Wagner-Stafford 26:11

Yeah. 

Erin Gurski 26:12

Article or what have you. So they would be the first person to contact. And they might tell you it’s actually the author that owns the copyright. And if they do, they will have the contact information that you can speak to the author directly. Otherwise, it – the same with if you were looking at a cinematic work, you would probably go to the production company and they would be able to tell you if you have to talk to the screenwriter, if you have to talk to the director, if you just – more than likely, you just talk to the production company and, and they’ll be able to give you whatever permissions you need. Also to bear in mind that depending on the work you’re looking to use and the copyright holder’s position, you may have to pay a fee. And …

Boni Wagner-Stafford 27:03

Right.

Erin Gurski 27:04

You know, it will likely be nominal if you’re only using a small part of their work but there may be a small fee involved. And if you really can’t track down the copyright holder – which does happen: I mean, sometimes people write a book and then they disappear into the ether and they’re never heard from again – if you really can’t find this person, in Canada, we have an “unlocatable copyright holder” provision whereby you can go to the Copyright Board of Canada and you essentially have to provide proof that you’ve tried as hard as you can to find the copyright holder and you haven’t made any headway. And so once you provided that proof, they will then be able to give you a licence for a small fee. Basically, they’ve taken the fee in case the copyright holder ever appears and says, “Somebody used my work. What’s going on?” And then they can give them that money. But you at least have a piece of paper that says you tried to find the copyright holder, couldn’t find them, and so the Copyright Board of Canada gave you sort of a limited licence for the use of that work. The UK has a similar – they call it “orphan work” – provision. The same thing: you’ll get a licence for a very specific use and you’ll pay a small fee. But the US does not at this time, as far as I know, have a similar provision for orphan works or unlocatable copyright holders. So in that case, you would just keep track of all of your efforts to find the copyright holder. And if you can, keep a little bit of, you know, like a slush fund aside, just in case. But make sure you keep sort of a paper trail or the email trail of your efforts so that if the copyright holder were to ever surface, you could say, “I did try to find you. Here is all my effort.”

Boni Wagner-Stafford 28:56

Right.

Erin Gurski 28:57

And you can take it from there.

Boni Wagner-Stafford 29:00

So when you do reach out to ask – whether it’s the publisher or the production company – what do you, what do you need to tell them? What do you need to say to people? What do you need to include in your request for permission?

Erin Gurski 29:13

As much information as you can. So if you are writing a book, you want to give them the title or the working title; you want to give them the publisher; your name, obviously, as the author or one of the contributors. They’re – they might ask for even more information. I know when I worked as the copyright officer at the museum, we ask things like, “How much is it going to be sold for?” and, “How many copies?” and they’ll likely want to know where it’s going to be distributed. So I know that for, you know, most books nowadays, it’s kind of better just get a worldwide licence because with the advent of ebooks and, you know, Kindle and audio versions and all of that, chances are it will be made available in more than one country. So it’s just better to get a worldwide licence just to cover all those bases: you won’t have to go back later and say, “Actually, we’ve decided to sell it in Mozambique. Is that, okay?” So they will ask you about distribution. And you essentially want to tell them exactly what you’re using, how much of it you’re using, and what your purpose is, what you’re writing about, and why this is important to – you know, why it adds to your piece. And that will just all be information that the latter bits, about what you’re writing about and what why it’s important, likely wouldn’t be in any kind of licence. But it can help your case if they’re kind of on the fence of, you know, whether they should allow you to use it or not, if you’re able to say, “This is really integral to my argument, and I, you know, would rather quote this author directly then paraphrase.” That can really help your case.

Boni Wagner-Stafford 31:11

Yeah. Now, paraphrasing: oh, that’s such a good one. And I – we’re coming up to our – I always try to keep this to 30 minutes. But we have to talk about paraphrasing. Some people think, “Oh, it’s, you know, I just – I reworded that quote and so now I’m safe.” So is that, in fact, true?

Erin Gurski 31:32

I think I would go back to what I had mentioned briefly about poetry and how a lot of poets are actually coming into difficulties, because, you know, they’ve used lines that are so similar to other published poets’ that there is a case there for infringement, because if you change, you know, “grassy hill” to “grassy knoll”, I mean, it’s the same thing; you just used a synonym. So you really do have to be careful with that because ultimately, it is up to the copyright holder to decide whether this is okay or not. And you can’t be inside their head and understand what they put value in, in terms of their work and the heart of their work. So you want to err on the side of caution. And make sure that if you are paraphrasing – I mean, obviously, as you mentioned, you would cite kind of where you got these ideas from – but if you are paraphrasing, it would probably be best to err towards less, rather than more content from another author. So don’t paraphrase, you know, an entire chapter’s worth of information.

Boni Wagner-Stafford 32:50

Right.

Erin Gurski 32:51

But also to understand that you are taking a risk because the author can decide this is far too close to their own work and they could contact you about the possibility of infringement, so ...

Boni Wagner-Stafford 33:05

And that starts to make more sense when you consider that copyright is the protection of the expression of ideas. It’s not the protection of the particular order of precise words in a particular sense; it is the expression of ideas once they are in an – a fixed form. Okay, this is super illuminating and super helpful. I want to – I forgot to mention off the top but you work for Copyrightlaws: I did mention that. But there are all kinds of great copyright courses that Copyrightlaws.com has available, including one called “Obtaining Permission: the Copyright Permissions Request”, and we’ve got a discount for 20 percent off the registration fee. And the code is Ingenium. I will put the link and that code in the show notes so you’ll be able to grab that if you’re interested in looking into that further. And let me just give you a chance to tell a little bit, Erin, about what happens at Copyrightlaws.com What is it you guys are doing?

Erin Gurski 34:19

Yeah, so it’s largely run by Lesley Ellen Harris, who is the wonderful woman that I work for. She is a lawyer and specializes in copyright law, but she really – Copyrightlaws.com has kind of become the go-to source for a lot of copyright professionals in Canada but elsewhere as well, in terms of accessible information about copyright because the acts themselves are often, you know, going on 100 pages long and there’s all kinds of references to previous versions and “If this, then that,” or, “If not this, but you may have to look at that.” And it’s, it’s all very complicated. So basically, what Copyrightlaws.com does is it puts it into plain language, so that you can actually, you know, read an article about the public domain and come away actually understanding what that means, which is so helpful, especially for people who – their whole life isn’t copyright: they need the basic. They need to understand sort of the heart of the issue and what parts of it apply to them personally. They don’t want to learn the entire act. They don’t want to memorize what all the exceptions are. They just want to understand what applies to them. So that really, there are so many resources on the website: lots of listicles, you know, where they just list the top 10 common misconceptions about copyright and you know, it’s a 30-second read but you come away with really a lot of knowledge about where you might have been making mistakes as far as copyright is concerned. And, and the courses are just, they’re very practical; there’s a lot of assignments that really help kind of hammer the ideas in but in a way that you can actually use this information moving forward. So whether it’s, you know, making yourself a top 10 list of the most important aspects of copyright to remember, it’s – you walk away with tools that you can really actually use in your career but in your everyday life.

Boni Wagner-Stafford 36:33

Yeah, and I can vouch for the courses there. I’ve taken a couple of the certificate courses there. And really, really empowering is how I found them. Which is the, you know, the whole tying back to the name of this podcast: the Empowered Author’s podcast. Erin, thank you so much. I really appreciate you taking the time and say hi and thanks to Lesley for the 20 percent discount for listeners. The link and the Ingenium code will be in the show notes. And we’ll have you back to talk about some more scintillating stuff around copyright at another time.

Erin Gurski 37:11

Fantastic. This has been a blast. Thank you so much. 

Boni Wagner-Stafford 37:14

Okay, thanks. Bye. 

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