For many works, figuring out whom to ask can be a major undertaking. Here is a systematic way to approach the task:
One may research copyrights using the database at the Library of Congress. This database lists claimants and copyright ownership to works registered after 1978. Stanford University has created a database containing renewal information from up to 1963, but it only includes textual works.
Contact the owner
If you know who the author and the publisher are, you can contact them directly. Once you know whom to ask, writing a letter, calling or emailing are all appropriate ways to initiate contact.
Confirming authority to grant permission
Whenever it is unclear who the owner is, or if the owner is a legal entity of some kind (a business or organization), you should be sure that the person giving you permission is authorized to do so. For example, if you are negotiating with an author, question them about whether they retained copyright or whether they assigned it to their publisher. Sometimes people are unsure. If you are preparing a commercial product, you will need assurances of authority to grant permission because your publisher will expect those assurances from you.
Written permission
Ideally, your permission should be in writing and should clearly describe the scope of what you are being permitted to do. Vaguely worded permissions may not cover your intended use. Be careful here: describe what you want to do precisely and include alternatives if you are unsure of format. For example, if you are preparing a web-based multimedia product, you may wish to distribute it on physical media under some circumstances.
Permission does not have to be in writing. If you receive oral permission, precisely describe what you want to do, and then document the conversation carefully. It wouldn't hurt to send a confirming letter to the owner, asking them to initial it and return it to you if it accurately reflects your agreement.
Unidentifiable/unresponsive owner
Sometimes, even if you go through all the right steps, you may not figure out whom to ask or the owner may not respond. There truly may be no one who cares about what you do with a particular work, but the bottom line is that no amount of unsuccessful effort eliminates liability for copyright infringement. Copyright protects materials whether the owner cares about protection or not.
While it is possible that a thoroughly documented unsuccessful search for an owner would positively affect the balance of the fair use test under the fourth factor or lessen a damage award even if the court determines that there was an infringement, there are no cases addressing this issue, so it's only a theory. Because your institution is likely to be liable, along with an accused individual, for the infringements of faculty, students and staff, most institutions advise such individuals not to use works for which required permission cannot be obtained. But many institutions are beginning to look at this reaction more carefully, and may determine that at times there are important considerations favoring limited nonprofit educational use of materials that would counterbalance the risk of harm to someone's legal rights.
The Motion Picture Licensing Corporation is an independent copyright licensing service exclusively authorized by major Hollywood motion picture studios and independent producers to grant umbrella licenses to nonprofit groups, businesses, and government organizations.
Movie Licensing USA, a corporate division of Swank Motion Pictures, Inc., addresses the specific movie public performance site licensing needs of schools and public libraries.
Swank Motion Pictures, Inc., is a major movie distributor and a public performance licensing agent in non-theatrical markets where feature entertainment movies are shown. Swank Motion Pictures, Inc., has exclusive distribution arrangements in many markets with most American movie producers for the motion pictures seen in theaters.
You may also need to investigate whether any rights need to be cleared that could be held by the actors, producers, writers, performers, guilds, or composers. Agent representation for living people can be found at WhoRepresents.
Much of this guide has been adapted from the University of Texas Libraries' Copyright Crash Course created by Georgia Harper. The guide can be found here: http://doi.org/10.15781/T24J09X6J
