Writers and journalists who are looking to reproduce or adapt existing content in their own work should read up on the risks of using copyright-protected content without permission.
You may have heard that it’s acceptable to copy someone else’s work provided what you reproduce amounts to less than 10% of the original. Consider this myth busted.
Under the Copyright Act, you need permission to reproduce any “substantial part” of another person’s copyright material. Copyright can apply to the written word, and to audio and visual works including paintings, photographs and films. Whether or not you are using a “substantial part” depends on the nature of the work itself, and this is a test of quality rather than quantity. What you may perceive as a small or immaterial portion may in fact represent the very essence or central idea of that work.
Why do I need permission?
The terms of a contract between a writer and their publisher will likely contain express warranties confirming that:
the work is wholly original to the writer;
any extracts from third party copyright-protected works have been obtained under licence; and/or
the work contains no material that infringes on the copyright or any other proprietary right of a third party.
A writer will also indemnify a publisher for any loss or damage arising from an action for copyright infringement.
This means that you, as an author, are at risk of breaching your contract if you do not take the appropriate steps to clear permissions with third party copyright owners. Your book might be pulled from the shelves, or not even proceed to print at all. You may also jeopardise any future relationships with other publishers in the industry.
To adequately meet obligations under a publishing contract and insulate yourself from risk, you should seek out written permission. Depending on the size or the commercial value of the extract you are looking to use, you may be expected to enter into a copyright licensing agreement or other contractual arrangement. You may also be expected to pay a fee.
In navigating your permissions, you should consider:
the extent to which you can authorise or facilitate the use of the licensed content to another party, such as your publisher or their licensees; and
the extent to which a work may contain embedded third-party material.
Are there any exceptions?
There are specific situations where you do not need to seek permission to use a third party’s copyright material. This includes fair dealing for the purposes of criticism or review, reporting the news or satire. However, these exceptions apply in limited circumstances and are unlikely to apply where the use is commercial. There are also other legal issues to navigate, even if an exception applies. You should consider the implications of:
your moral rights obligations, including the need to credit the copyright owner and respect the integrity of their work;
defamation laws and the implications of using elements of someone’s life story;
the common law action of passing off and making misrepresentations in your work; and
the different laws of publication in other territories.
If you are an author needing assistance to navigate permissions clearances or understand your obligations under a publishing contract, we are here to help. Also, if you have grounds to believe that copyright in your work has been infringed, we can work with you to enforce your rights.
If you are in the business of publishing, we can develop a suite of licensing resources that protect your business against claims of copyright infringement.
Our services at Sladen Legal include:
author contracts;
contracts for freelance designers and editors;
contracts for commissioned works;
copyright licensing, permissions agreements and consents; and
advice relating to copyright and other IP infringement.
Sladen IP is dedicated to assisting creative and inventive individuals and businesses in protecting, commercialising, maintaining and enforcing their intellectual property rights.
Our team can work with publishers, agents and authors alike to manage the licensing of literary or other creative works, together the sale or transfer of copyright subsisting in these assets.
For further information or advice please contact:
Michelle Dowdle
Special Counsel
T: +61 3 9611 0114 | M +61 408 674 256
E: mdowdle@sladen.com.au
Laura Bentley
Lawyer
T: +61 3 9611 0120
E: lbentley@sladen.com.au
