Copyrights management is a serious problem for all who write and publish books. The US Supreme Court says that there is such a thing as fair use; that is, you can use a portion of a copyrighted work in your book without a license and without paying any royalty. But no one knows what fair use means. The Court has not been clear in defining it.
Therefore, to be on the safe side, you need to get permission to use anything (e.g., text, graphics, audio bites, video clips, etc.) in your book that you don’t create yourself. You need to get a license from the copyright holder. The copyright holder may give you a free license or one that requires a royalty payment. The process may take a day, or a year. You may not be able to find the copyright holder easily, maybe not at all. And there are other complications.
Keep in mind that the alternative is to use only copyrighted works in the public domain; that is, works that the author has, in effect, given up his or her copyright or given a general license to the public. Also in the public domain are works for which the copyright has expired.
Fonts
Let’s use typefaces (fonts) as an example. I’m all for paying font makers for their good work. Like any other creative people, they need to be compensated for the products (fonts) they turn out. Thus, it is unfortunate that the licensing situation may prohibit many authors from using good fonts that are not in the public domain. The leasing agreements and the fees for different rights are so varied and so often complex that it requires rights management (time and effort) just to keep track of the use of fonts for publications.
For instance, there may be separate licensing agreements and fees for using the same font in a printed publication, a webpage, an ebook, a webbook, or a bookapp. If a font must be embedded in a publication in order to be used (e.g., a bookapp), the fees are outrageous. The fees are outrageous because with embedding fonts, you are deemed to be reselling the font rather than just using it for the publication. Thus, for certain digital publications the fees are so high that you would never consider buying fonts for that purpose. Where does that leave you?
If you buy a font for one publication in one medium and are certain you will never publish it in another medium, purchasing a font license might make sense (assuming you’re ready to keep the license on file for the next fifty years). But the name of the publishing game is to repurpose your writings as far and wide as you can whether it’s today, tomorrow, or ten years from now. And you just never know how you will repurpose one of your works.
As a result, every time you go to repurpose a work you may have to revisit the rights you have in a particular font. If you don’t have adequate rights, you’ll have to revisit the source and pay for additional rights.
From a bygone era I still have several dozen fonts I bought in 1992 (I’m a font addict) that I still use for desktop publishing. What are my rights? Can I use them on the web? Can I use them in PDFs? Can I use them in ebooks? Who knows? I didn’t keep track of the rights.
If your publishing company is so large that you have a rights management (rights clearance) department, this is perfectly acceptable. But for an individual author or small independent publisher, this situation is unacceptable. In other words, it’s not the cost of the fonts but the right rights management that’s the problem.
Until the font makers have one uniform contract for the licensing of rights and reasonable fees for all uses of rights, the font industry will never realize its full potential for revenue.
What can you do? Dishonest people will use fonts whatever way they want to without regard to licensing agreements, and few will get caught, if any. Honest authors and publishers will avoid using fonts except those that are in the public domain under a standard licensing agreement that provides for any use whatsoever of a font.
It is with sadness (because I am a semi-professional typographer) that I report what I do personally. I never know when I’m going to repurpose something. Anytime a font must be embedded, a typical license agreement requires payment of between $300 and $4,000. I cannot pay that much for the use of a font in a publication that might sell a few thousand copies for a $1.99 each. And I’m not going to shortchange font makers by using fonts without permission. Thus, I simply boycott all fonts that are not in the public domain. That’s my font management scheme (i.e., my copyright clearance scheme).
Fortunately, today there are many excellent fonts in the public domain. The Google fonts (over 500) available to everyone are a good example. But as many fonts are as in the Google repository, it’s never enough for font lovers like me. If font makers can get their act together and come up with some way to license fonts on rational basis that does not require copyrights administration by individual authors and small publishing companies and does not require royalty payments, I’ll be the first to start licensing fonts again. But that would require an industry-wide standard license agreement and reasonable fees for all digital publications. Unlikely.
A small example This chapter is not about fonts. It’s about using the intellectual property of others. The font situation is just one small example.
Other Intellectual Property
There is myriad other creative works that you might use in your digital publications, and there is not enough time in the day to keep track of them all for the next half-century in order to protect yourself from an infringement lawsuit. (The license you buy today is your defense 30 years from now when you get sued.)
What’s the solution? That’s the question of the hour, primarily because the US Supreme Court hasn’t reached a clear definition of fair use. For instance, suppose you write a book about North Dakota politics. You want to use a few quotations in your North Dakota book from other published sources. There is no public domain repository of political quotes about North Dakota, as there is for fonts. For that reason, you must get permission (get a license) for whatever you use. This is called rights clearance (copyrights management). As mentioned above, though, rights clearance is not a practical activity for authors or small publishers.
Accordingly, you might develop your own definition of fair use. For instance, one of the large national publishers for my printed books had a policy that defined fair use as 50 words or less. That wouldn’t stand up in court in all cases, but at least it was a guideline that reduced the risk of a law suit for infringement. (My large publisher did not do rights clearance.) Unless your digital book has large sales, you probably don’t have to worry much about getting sued for infringement, assuming you use a conservative definition of fair use.
So what will be your guideline for avoiding infringement? One paragraph? Three sentences? Fifty words?
Fair use for media other than text is more difficult. For instance, if you can’t republish someone’s photograph under fair use, can you republish part of it? If someone’s book contains 70 photographs, can you republish one of them?
Conclusion
Fair use is the subject of countless articles and many books. But because rights clearance is not practical in most cases, you need to develop a common sense guideline for fair use to reduce your risk of a law suit. Or, use only intellectual property in the public domain. Or, you can completely refrain from using the intellectual property of others. But if you do use the content of others and it doesn’t fall under fair use, you need to get a license to do so.
