How to ask for permission

You find a photograph that would make a local-history exhibition feel alive. The photographer's name is listed, but the image appeared in a newspaper years ago. Where do you begin?

Begin with one work and one use. "May we use your photos?" leaves the owner guessing. "May our museum display this photograph, identified below, in this exhibition and on its webpage?" gives them something they can say yes to. Unless a limitation such as fair use applies, you need the copyright owner's permission (a license) to use a work you did not create, wherever you found it. The U.S. Copyright Office cannot grant that permission for the owner. 1

Find the person who controls the needed right

Work through these in order:

1. Read the work itself. Look for the copyright notice and for credits or acknowledgments. A credit is a clue that part of a larger work belongs to someone other than the owner named in the notice. A missing notice does not make a work free to use: notice has been optional for works published on or after March 1, 1989. 1
2. Check the file's metadata. A digital image often carries the creator's name, the copyright owner or licensing terms in its metadata. 1
3. Search the Copyright Office records. Records from 1978 onward are searchable online in the Copyright Public Records System; older records are searchable at the Copyright Office. 1 7 No record does not mean no copyright: a search of the Office's records is not conclusive, and many protected works never appear in them. 4
4. Pay for an official search if you need one. The Copyright Office will search its registration and ownership records for an hourly fee and send a written report. Ask for an estimate first and check the current rates on its fee page. 7 4
5. Ask the publisher. If the records give no contact details, write to the organization that published the work. 1

The name on the work is a starting point, not the answer. Copyright belongs first to the author, but an employer owns a work made for hire, and the author can transfer the copyright, leave it in a will, or have it pass to heirs. 2 The owner named in a notice may no longer be the owner, and only the current owner of the exact material can grant permission. 1 Many owners use an agent or licensing service that grants permissions for them. 1

Rights can also be split: each exclusive right in a copyright can be transferred and owned separately. 2 In a work built on another work, permission from the owner of one part may not cover the other parts. 4 So ask for the specific right your project uses. The person who can authorize a newspaper reprint may not control merchandise, an archive's online use, or an adapted version.

For the exhibition, write to the newspaper first. It may tell you the photographer kept the copyright, or point you to an estate or an agency. That referral is progress, not a failed request: the first person you contact often has to refer you on, or needs time to check what they can grant. 1

Describe the project in ordinary language

The Copyright Office suggests including: 1

• the name of the author, editor or translator
• the title of the work and any edition or volume number
• the exact material you want to use, as specifically as possible
• the copyright date
• how you will use it
• the audience who will see or receive it
• whether it will be sold
• your organization's name, and whether it is a nonprofit
• your name and contact details

Put that into plain sentences. For example: "We would like to display the photograph identified below in our exhibition from May through August, and on the exhibition webpage for one year. We would resize it without changing its content and credit you as you prefer. Admission is free and nothing will be sold. Could you tell us whether you control these rights, and whether you would grant permission, including any fee or conditions?"

Add anything else your project actually needs: printed copies, translations, advertising, territories, or who else will receive the file. If you will crop or alter the work, say so now. Send the request as far ahead of your deadline as you can. 1

Make sure the answer matches the question

A friendly reply can still leave a gap. "Happy for you to share it" does not answer a request for an exhibition catalog sold through bookshops. Reply warmly, restate the exact use, and ask the owner to confirm it before the project grows around an assumption.

Keep the permission in writing. A nonexclusive permission does not legally need a written agreement 5, but an email that names the work, the use, the fee and the conditions is the record you will point to if anyone asks later.

Buying the copyright or taking an exclusive license is different. Both count as a transfer of copyright ownership 6, and a transfer is valid only in a written document signed by the owner of the rights. 2 A casual "yes" by email is not that document.

No reply is not a yes

If you cannot find the owner, or the owner never answers, you still need permission unless a limitation such as fair use applies. The Copyright Office cannot tell you whether one does. 1 Fair use is decided case by case on four factors: the purpose and character of your use, the nature of the work, how much you take, and the effect on the market for the original. 3 An unanswered email is not one of them.

Choose your next step:

1. Use a different work, or commission a new one.
2. Use a work under an open license you have checked; see Creative Commons without the guesswork.
3. Check whether the work is already in the public domain.
4. Work through how fair use works in the United States against your actual use.

The museum might end up with a modest license, a different photograph, or a newly commissioned illustration. Any of these is a good result, as long as you know why you made the choice and the person whose work you used knows how you are using it.