Acquiring permissions for a DUP project
As an author or collection editor you are responsible for obtaining the necessary permissions to include in your book any material for which the rights belong to anyone other than yourself—or, alternately, for determining if your inclusion of the material qualifies as fair use or if the material is considered part of the public domain. Duke University Press strongly supports fair use, and we recommend that you discuss it with us before requesting permission to reproduce any materials that you analyze in your work.
Below you will find guidelines about how to understand fair use and public domain, how to request permissions, a sample permissions request letter that lists our preferred terms, and a log for documenting all art and permissions for your book. You will need to provide your acquisitions editor with a completed Art + Permissions Log along with any and all necessary permissions documents before your manuscript can move along into the production process. Also included below is a publication agreement form, which editors of collections are responsible for collecting from each of their contributors.
Copyright, Fair Use, and Permissions Guidelines
This document outlines how to obtain and organize permissions for your book.
Art + Permissions Log
This Excel document includes a template for you to use in documenting permissions for art and reprinted text in your book. The first tab in the document provides instructions, while the second contains the template itself.
This template can be used when writing to a copyright holder to request permission for images or text materials.
This is the form required of contributors to a collected work for previously unpublished essays.
Frequently Asked Questions
What types of materials require permission?
As a general rule (with some important exceptions) you are required to obtain permission to reproduce any text and image that is not created and owned by you. For example, you will likely need to obtain permissions to include in your book:
- Your own previously published work where the publishing rights are held by someone else;
- A contributor’s new or reprinted essay;
- Poems or song lyrics that are reproduced in large part or are not analyzed within the text (for example, in an epigraph);
- Images, graphs, maps, or illustrations not produced by the author
There are some materials that do not require permission to reproduce, or where you should not seek additional permission (though in some of these cases you will need to provide us with documentation). They include:
- Your own previously published piece, to be republished in verbatim or close-to-verbatim form, where the publication agreement specifies that you may reuse the material in your own authored book;
- Your own previously published piece, where you have retained publishing rights;
- Your own previously published piece, where you have made substantial revisions to the earlier version;
- Works made for hire on your behalf (if you have a written agreement to this effect);
- Images or text analyzed within the book that qualify as fair use (for example, quotation for the purpose of analysis);
- Images or text in the public domain (for example, something published in the US before 1923, government documents, court cases, or images distributed by a government agency).
How do I go about requesting permission?
First you need to determine who controls the rights to reproduce the material. In many cases the rightsholder will be the creator of the work. But the rightsholder could also be a publishing company, the creator’s estate, a newspaper, or another private organization.
For a book or article it is often easiest to start with the publisher. A publisher should be able to tell you whether it holds reproduction rights for the piece, or whether those rights lie with the author or another entity. If you go first to an author or other listed rightsholder, they may well have signed over publishing rights to the publisher or someone else; but they may not always be clear about that. So starting with the publisher is best whenever possible.
For a work of art or a photograph, you can in some cases contact the artist directly. In other cases you may need to do some research to find out if a gallery represents the artist’s work, or if a licensing group (such as Artists Rights Society, VAGA, or Art Resource) is in charge of clearing reprint requests. If there is a credit line attached to the image, start there. For artwork you will often be required to obtain two permissions: one from the artist or creator of the piece and another from the museum or gallery for their reproduction of the work (e.g., a photograph of a painting). If you know where the artwork is housed or who can provide a quality reproduction, begin your inquiries with them. The gallery or the museum’s image library may be able to provide additional information about how to clear rights with the artist. (This additional step is often stipulated in the museum’s own permission.)
What do I ask for when requesting permission?
There are a few key terms that should be included in your permission request. Ideally we would like to have non-exclusive publishing rights for use in your book and any excerpts of the book, regardless of media, territories, and languages.
Non-exclusive. This means that the rightsholder does not give up the right to license the work to others.
Regardless of territories. This means that the Press can sell the book anywhere in the world. Although our primary market is in North America, we also have strong markets in the U.K., Australia, and elsewhere. There are instances where our territory may be limited, as when we are co-publishing the book with another publisher or publishing a translation. In these cases, check with your editor about the proper wording for territory exclusions.
Regardless of the media in which it is distributed or displayed. This ensures that the Press can make your book available in multiple formats. Currently most of our books are published in both print and electronic versions. As publishing media evolve, though, your book may be distributed and viewed in other ways. The broadness of the language in this clause ensures that your book could be included in any new forms of publishing that we undertake in the future. You can reassure rightsholders that the reprinted image or text will only appear in the context of your work, no matter what medium it appears in.
Regardless of the languages. Although your book will likely only be published in English by us, request use in all languages means that it will be easier to include the licensed material in any translations of your book. For example, if we later granted a French publisher the rights to translate your book, they would not need to seek out new permissions to use the copyrighted material.
What if the rightsholder will not grant the requested rights?
Some rightsholders may not agree to all of these terms when you submit your request. Or they may demand that you pay quite a bit extra for electronic rights or additional language rights. First, try to negotiate with the rightsholder. Permissions fees are rarely set in stone. Emphasize that this is a scholarly book coming from a not-for-profit publisher and that as author you are responsible for paying your own permissions fees. Often rightsholders resist granting electronic rights or limit the number of copies or print runs you can include the piece in because they are concerned that their work will be made too easily accessible. If you are unable to convince them otherwise or cannot get them to lower an exorbitant fee for such rights, then you should either drop the image or replace it with something comparable. If the image or text is essential to your book, contact your editor or their editorial assistant. Your editor will work with you to decide how best to handle the particular circumstances, since not having full rights, even for a single small piece, may limit the forms in which your book can appear or how long we can keep it available for purchase.
Rightsholders will frequently ask you to provide estimated print runs and prices for your book so that they can assess an appropriate fee. Your editor can give you this information. While estimates may be a standard part of your request, we prefer not to accept limitations on print run in the actual permission. As a general rule we publish small first printings and then reprint as necessary, and it would be impossible for us to renegotiate permissions before each and every printing. If the rightsholder insists on including limitation, we suggest that you ask the rightsholder to grant you a one-time permission for a single edition of the book. This will cover usage for any reprintings, but would require a renegotiation of the permission before any revised or new editions of the book were published.
Except in extraordinary circumstances the Press cannot accept any time-term limitations on text or images.
What type of documentation should I request?
You should keep written documentation for each piece that requires permission. This can be a letter that you send to the rightsholder and they countersign; it can be a letter issued by the rightsholder; or it can be an email response to your written request. In each case the permissions should clearly state what images or text you are being granted reprint rights for and what rights are being granted (as well as any restrictions). If you sent an email or letter to the rightsholder and received a simple assent back from them, keep a copy of your initial request so that we can see what the terms of the agreement are.
There are rare occasions when it is not possible to obtain permission in writing (for example, when someone grants verbal permission over the phone and cannot follow up with a letter). If such a case arises, please keep a written account of your discussion, including the date and what the rightsholder said to you. This would not be acceptable from a publisher or any other entity that regularly provides permission to reuse its work; rather, this would apply in cases where written permission would not be easily obtained (for example, from an individual informant you met during ethnographic fieldwork).
For original essays that will be part of an edited collection, you will need to obtain signed contributor agreement forms from each author (you can find this among the permissions documents available above). No other permissions are needed for original contributed essays, unless they include embedded materials for which the rights are held by third parties or the publishing rights are held by someone other than the author (in which case you would seek permission from the publisher rather than from the author).
There is a sample permissions letter available with the Permissions Documents listed above, which you can use as a template for your own requests.
What if I cannot locate the rightsholder?
There may be instances when there is a clear copyright holder for a work but you are unable to locate that person or company, or when you ask for your permission but receive no response. Please contact your editor's Editorial Associate to discuss the possibility of making a claim for due diligence.
Works produced outside of the US will likely be protected by the copyright laws of the country where they were published or created. It is your responsibility to ensure that your use of the material adheres to the copyright laws of that country.
What is fair use?
Fair use is a set of exemptions built into US copyright law in order to allow the use of copyright-protected materials for the purposes of criticism, commentary, news reporting, and scholarship. There is no single litmus test for determining whether something does or does not qualify as fair use. Rather, fair use is a complicated set of legal guidelines and precedents that needs to be actively exercised and defended to remain intact. Duke University Press is a staunch proponent of fair use and encourages its authors to claim fair use on materials where appropriate.
The Fair Use section of the Copyright Act of 1976 (Section 107) says there are four factors that must be taken into account to determine whether something qualifies as fair use:
1. Purpose and character of the proposed use, including whether such use is of commercial nature or is for nonprofit educational purposes.
This relates to both how you use the material and how the material is distributed. If you are clearly reproducing material for the purpose of scholarly analysis, critique, or parody, that strengthens your claim to fair use. But the reproduction of the work must be integral to your argument, and the work must be discussed and critiqued in the course of the text (which may include the captions, for images), rather than included as a form of illustration. Duke University Press is a nonprofit publisher with a scholarly mission, and thus our books are generally aimed towards academic markets; that helps us meet this factor, but is not always sufficient in itself.
2. The nature of the copyrighted work.
This generally pertains to whether or not the material is considered to be “creative expression.” Factual documents, for example, would not generally fall under copyright protection. You can use historical information or data you found in another book without infringing on someone’s copyright. Furthermore, ideas themselves are not protected by copyright, so you may generally paraphrase or provide a summary of a text without requesting permission.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
If you are quoting a few lines from a long novel or analyzing a few frames of a long film, you are only reproducing a small proportion of an entire work. The proportion of a total work is not the only factor, though. If you are including the most crucial aspect of a work, even if it is only a small part, then the question of “substantiality” comes into play.
4. The effect of the use upon the potential market for or value of the copyrighted work.
This is often considered to be the most important factor in a fair use case. Will your use of an image or text adversely affect the copyright holder’s potential ability to sell or market the piece?
Consider each of these criteria when determining whether your use of material belonging to someone else falls under fair use. Do not ask the rightsholder for permission if you think that fair use may apply. First consult with your editor. Together you can decide whether it is necessary to seek out permission.
What is public domain?
Works in the public domain are not protected by copyright, generally either because the copyright period has lapsed or because the material was produced by the US government. You may reproduce pieces in the public domain without permission (although, as always, you should give full citation to your source). All materials published in the US before January 1, 1923 are in the public domain. Many materials published between 1923 and 1964 are also part of the public domain, if the copyright was not renewed. (Check out the AAUP Permissions FAQ for a detailed account of what falls into public domain; and see also http://copyright.cornell.edu/resources/publicdomain.cfm)
Do I need permission to include material from a previously unpublished work by another author?
There is a specific copyright law for unpublished materials. For example, unpublished and unregistered works become part of the public domain 70 years after the death of the author. Unpublished anonymous or pseudonymous works (including works published by a corporation) enter the public domain 120 years after creation. Similar rules apply to unpublished letters and documents that you might access through an archive. If the work is not in the public domain, you will either need to obtain permission from the rightsholder (which may be the author’s estate) or seek permission from the archive holding the materials (if they have the right to grant such permission, which is not necessarily the case just because they hold the material in their collection).
I have an image I’d like to use for my book cover. Should I go ahead and get permission to use it?
Our in-house design staff will make final decisions about the cover design for your book. They are, however, quite amenable to hearing author suggestions for cover images. If there is an image you would like to use, obtain as much information as you can about the rightsholder and the licensing fee for the image. The cost for using an image on the cover in color is usually higher than for reproducing an image inside the book, so specify the use when you request a fee estimate. You should submit a copy of the image and the rights information with your artwork.
Some authors are able to obtain quality versions of a potential cover image plus permission to use the image at little or no cost. In that case you should feel free to submit both the image and permission with your final artwork. But we do caution authors against spending a lot of money on an image that may turn out not to be appropriate (for design or quality reasons) for use on the cover.
Portions of my own writing have appeared in other publications. How do I handle permissions for these pieces?
It is perfectly acceptable for you to include in your book discussions of topics that you have addressed in previously published work. And some parts of those discussions can largely repeat arguments, analyses, or examples that you have used in earlier publications, without causing any rights and permissions difficulties. That’s because ideas that have been publicly discussed—whether your own or someone else’s—are fair game for further discussion.
But if you are including in your book any chapters that reproduce substantial portions of the text from another publication—text for which you have transferred, in whole or in part, the copyrights related to that material—then you will need to discuss the matter with your editor. Reuse of previously published articles or chapters in your book will affect our copyright registration and may well affect our ability to distribute your book as widely as possible (e.g., via licensing for electronic uses, for translations, or for coursepacks).
For this reason, we hope you will consider significantly reworking, expanding, or otherwise altering significantly any chapter-length concepts and ideas that carry over from your previously published texts to your book with Duke University Press. This will help to integrate the earlier work into the book as a whole, which is important if the book is to contain an extended argument rather than a collection of discrete pieces that might sometime repeat the same points and might not be carefully woven together.
In terms of publishing rights, we do need to know whether any of your chapters are reproducing either verbatim or significantly the text (rather than the ideas) from an earlier publication. If another publisher controls the rights to one or more chapters of the book, that can severely restrict our ability to license the material for future uses. While journals and other university presses often do allow authors to reuse their own work verbatim in new projects of their own authorship, with proper citation expected but no need for formal permissions, even these situations can create future problems that might hinder the fullest distribution of your book: if the original publisher is the rightsholder for a particular chapter that was not significantly altered before being published in your book, and that publisher has not returned those rights to you, that may mean we will face restrictions from the other publisher on licensing your entire book for electronic use, for translations, etc.
Should you wish to reference your previous scholarship on the topics discussed, you can and often should do that in the acknowledgments section of your book, using language that makes it clear that the text draws on your earlier publications but that it does not simply reproduce the text from them. Please use the word “reprinted” in the acknowledgments only when the text truly is verbatim—in which case you will need to note the verbatim printing on your permissions log (and include documentation), and we will need to note that another publisher holds the copyright for the reprinted material in the frontmatter of the book. Where the ideas are largely the same as those you previously expressed but the text is significantly different, please use the language, “An earlier version in a different form appeared in Z.” you can include this information on the permissions log, but make sure to note that no permission is necessary since the piece has been substantially revised.
If you are in doubt about any of this, please discuss with your editor what sorts of changes to previously published material make sense before it is included in your book, and whether that level of alteration would do what is needed to make your book chapter an original work.
Do I need permission to use epigraphs in my book?
Whether an epigraph requires permission depends on both the source and your use of the quoted material. Epigraphs from materials that are in the public domain do not require permission. Epigraphs from copyrighted materials must either quality as fair use or be used with the permission of the rightsholder.
An epigraph must be sufficiently tied to the text that follows in order to qualify as fair use. There must be either an articulated link or a readily articulable link between the epigraph and the text that follows. If so, then we can apply the same principles of fair use that we do to other forms of quotation and excerpt.
An articulated link means that you have referred back in explicit terms to the quotation, perhaps explaining its relevance to your claims or commenting on the quotation itself. (“As Foucault suggests in his description of the prison . . .” or “Baldwin’s words remind us that . . . “) A readily articulable link means that an average reader would without any strain be able to infer a clear connection between the epigraph and the main text. For example, if the epigraph is a quotation referring to worries about crime in downtown St. Louis, and the ensuing discussion is about contemporary perceptions of urban crime, this would be a readily articulable link. The reader can see that the epigraph is meant to show how people are discussing crime in this context. If the link is not clear, you should either strengthen the connection, drop the epigraph, move the quotation to the main text, or obtain permission from the rightsholder.
If an epigraph is being used for purely decorative purposes, you should obtain permission to reprint the material. The use is “decorative” when the epigraph is not clearly linked to the main text. For example, if you are using an epigraph simply to set the tone for the chapter or as a form of inspiration that is not followed up on in the text, that would be considered illustration and would not quality for consideration as fair use.
Song lyrics and poetry tend to be highly protected by rightsholders and are unlikely to qualify for fair use as epigraphs. If you would like to use quotations from these types of materials in your book (and they are not in the public domain), then you will almost certainly need to obtain permission from the rightsholder. If that is difficult or prohibitively expensive, then we suggest moving the quotation into the main body of the text, where you can analyze the material in more detail.
How do I submit my permissions to Duke University Press?
Ideally you should submit a complete set of permissions when you send in your final manuscript and artwork. This will give the editorial office enough time to go through the permissions and contact you with any questions that may arise when the manuscript is being prepared for production. If you are unable to submit a complete set of permissions when you send in the final manuscript, please let your editor or their assistant know. We must have all of your approved permissions in house before your book can be accepted for copyediting.
A completed permissions log should accompany the documentation. This log lists each item (reprinted essay, piece of art, or other text requiring permission), along with any pertinent information about restrictions or use or distribution (Sample Art + Permissions Log).
Each permissions should be clearly marked (with image number or chapter number) in the upper right hand corner. If you are working on an edited collection, please indicate the contributor’s name as well as the figure number or chapter on each permission. For any permissions submitted in a language other than English, please supply a translation that clearly indicates what rights have been granted and any stipulations.
For artwork, you should indicate any required credit lines or copyright notices in your image captions. For reprinted text, please include a separate document with the required credit lines and a note about where this information should be placed (if specified on the permission). You should not include acknowledgements of earlier publications that do not require permission in this document. That information can be included in your own author acknowledgments.
You do not need to list contributor agreement forms on your permissions log. Simply send the contributor forms to your editor or editorial assistant along with the other materials.
Make sure to retain a copy of the permissions and all other paperwork for your own records.