Question: We want to use parts of another company’s documentation to supplement/support our product’s documentation. I know we need to get a letter stating that we can use parts of the other company’s copyrighted material, but what exactly should be addressed in the letter?
You’re smart to recognize the importance of the copyright issue here!
Although in some parts of life, as the saying goes, “it’s easier to ask forgiveness than to ask permission,” that’s certainly not true in copyright law. It’s very important to ask permission, because if you don’t, you could be committing copyright infringement.
In some instances, you may be able to use small portions of the other company’s documentation without asking permission, under the “fair use” doctrine of copyright law. However, this doctrine is highly fact-specific and often confusing; in other words, it’s impossible to provide a blanket rule about how many paragraphs or words you can copy without violating the law.
Under the U.S. Copyright Act, fair use is determined by evaluating at least four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
I’ve often had people ask me, “Well, if I only copy a small portion of the text, then that’s okay, right?” The legal answer is, “Not necessarily, because all four fair-use factors must be considered.”
If you want to use the other company’s information and think your use might qualify as fair, I’d highly recommend getting a copyright attorney’s opinion first. Only someone who evaluates your specific case can tell you whether your use may be fair (and, even then, you may get a qualified answer).
But why take the risk? The much safer approach, as you recognize, is simply to ask permission. That way, if you do indeed obtain proper permission, you’ll have no restless nights wondering whether you’re a copyright infringer!
Here are just a few of the most important things to keep in mind when getting a copyright permission letter:
Make sure you’re getting permission from the proper party, and from all of the relevant parties. For example, if you want to include some text from a book written by two authors, you may need to get permission from both authors as well as the book’s publisher. Copyright ownership can be very tricky, and sometimes even authors themselves aren’t sure who owns the copyright in a particular work. A copyright attorney can help ensure you’re getting permission from the proper party.
Make sure you get all of the rights you need. This may sound obvious, but it’s important to think about what uses you will make of the other company’s work. For example, if you want to use the material in hard-copy format as well as on your company’s intranet, make sure the permission letter gives you both of those rights. And, if you want to distribute the hard copies in another country, make sure you get that right, too. It’s impossible to list all of the rights here, but an attorney can help advise you.
Make sure you get adequate legal protection Suppose, for example, that you include material from the Acme Company’s training manual in a training manual for the John Doe Company. What if it turns out that the information is inaccurate and, as a result, someone at the John Doe Company relies on the information and injures himself? Or, what if it turns out that the information was simply copied by the Acme Company in the first place from someone else and the Acme Company never obtained permission?! Your lawyer can include provisions in the permission letter to help protect you from legal liability in these types of situations.
The above list is certainly not intended to be complete. And, I know I haven’t provided an actual letter you can use. That’s because every situation is different. Although a lengthy permission letter may provide you with the greatest amount of legal protection, that may not be practical. So, you may have to weigh the legal risks against the business interest and decide whether the permission letter you can get will be adequate.
For further reading on this topic, visit GigaLaw.com.
Note: The material in this column addresses a general legal issue only; is not legal advice and should not be relied on as such; and may or may not be appropriate to a specific situation. Laws and procedures change frequently and are subject to differing interpretations. This column is not intended to substitute for obtaining legal advice from competent, independent, legal counsel in the relevant jurisdiction. If you want legal advice, please consult a lawyer. This column is not intended to create, and does not create, a lawyer-client relationship. You should not act upon anything in this column without seeking professional counsel.