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Legal Eagle

Copyright

Q: Extracts used without publisher's permission

I should like to print a 1,000 word extract from the 1970 biography of a deceased showbusiness personality. I wrote to the author, care of the publishers, to request permission. The letter was returned by Royal Mail as "gone away" and I have confirmed that the firm is no longer at its old address. Can I proceed without permission?

A: For the answer to a somewhat similar question please see my Legal Eagle column in the issue of The Stage dated August 23, 2001 (see the entry called ‘Biographies - breaching copyright’ in Copyright).

I have to say that your excuse for not obtaining permission because a letter to the publishers was returned marked "gone away" is both unconvincing and inadequate. The publishers are very likely a limited company in which case you can conduct a search at the Companies Registry for the address of its registered office and/or the names and addresses of its directors and repeat your request accordingly to one of them. You could also try and trace them through the Publisher's Association or the printers of the biography. One way or another you should be able to track them down. You do not say whether you have tried to contact the author direct, possibly through the Writer's Guild or some such other organisation. At all events, if consent is needed, an unsuccessful attempt to communicate with the party concerned is no excuse.

The only thing I would add to what I have already said on this matter in the previous issue, is that in relation to the question of "substantiality" or otherwise, something may turn on whether you quote the extract from the other work verbatim or simply use in your own words any factual research incorporated within it, since greater latitude is normally permitted in relation to the use of purely factual material from previous works than non-factual material expressed by the author with some degree of originality. Nevertheless, the issue of substantiality is an important one and a 1,000 word extract is certainly capable of being a sufficiently substantial part of the whole work as to be protected by copyright, although, as previously mentioned, this question is to be resolved not only by reference to quantity but also with particular emphasis on quality, which is where the aspect of historical fact comes in.

At best, it is unsafe for you to do otherwise than obtain permission for the reasons previously given.

First published April 2002