Know the ownership drill
In the good old days, copyright owners were prominently noted in the copyright notice that the law required published works to carry. For works with such a notice, your task is easier (at least you have a starting point). But for many works, figuring out whom to ask can be a major undertaking. Sometimes it is impossible. Nevertheless, if you keep in mind the structure we've set out below, it can provide you with a systematic way to approach the task:
Orphan works and taking risks
If you can't identify authors (or their estates) or business owners, or can't successfully contact them, you probably have an "orphan work." The vast majority of materials in our libraries and archives are in this category today -- works for which a copyright owner cannot be found. These works present serious policy challenges to our copyright law in that they will languish unless a suitable way can be found to allow uses of them that adequately address the rights of copyright owners. Until such time as a legislative solution emerges, those of us who wish to make uses of orphan works must ask ourselves how much risk we are willing to take that an owner we've tried to find and couldn't find will one day come out of the woodwork and exercise the law's harsh remedies to punish us for our uses. Most people are unwilling to take this chance, but some are not. Some are quietly digitizing works that seem very low risk, and providing access to them to the public. Little by little, we edge forward in the dark. For more information about orphan works, please see public domain and orphan works.
Assuming the work you wish to use is protected, the work has not been licensed for your use online, and your use is not a fair use or otherwise exempt from liability for infringement, you need permission. Now what?
Getting permission can be difficult, but in some cases there are steps likely to yield results. The steps will vary depending on the type of work you need to use.
Copyright Clearance Center
If the work is part of a book or a journal article, check the Copyright Clearance Center ("CCC") first. The CCC offers electronic and photocopy based transactional (case-by-case) permission services, as well as a subscription license that covers typical institutional use of works for the classroom of all the works in the license repertoire. Mark Roseveare, your copyright officer, already works with the CCC and should be able to help you. If the work you want to use is registered with the CCC, you can get permission instantly for most materials. If your institution subscribes to the academic license and your work is covered, you don't have to do anything -- your use is covered.
At this time, the professional organizations representing image creators cater to commercial interests and may be unfamiliar with educational needs. There are only a few collections specifically devoted to educators. Until more organizations catering to our needs emerge, these are a sampling of your options.
If the work you need to use is from a newspaper or other news organization, check the web. Many of the largest news organizations have placed archives of their back issues online.
If you have a movie you'd like to use in the classroom, you need to use a legally made or purchased copy. You normally should only show the specific portions you want to talk about, not the entire film, unless it is one that the library purchased with that specific license attached. For an online class, you could use a similar amount that falls under "Fair Use."
Internet Archive has educational public domain films available for download. The films are stored in MPEG format and need to be downloaded to view rather than viewing as streaming video.
You may also need to investigate whether any rights need to be cleared that could be held by the actors, producers, writers, performers, guilds, or composers. Agent representation for living people can be found at WhoRepresents.
One may research film and video copyrights using the database at the Library of Congress. This database lists claimants and copyright ownership to works registered after 1978. To search for works registered before 1978, one must search in the Library of Congress online catalog, LOCIS, or in printed Copyright volumes. Stanford University has created a database containing information from before 1978, but it only includes textual works.
Contacting the Owner
If you know who the author and the publisher are, you can contact them directly. If you do not know who the publisher is, The Literary Marketplace (for books) or Ulrich's Web (for journals) may help you. Once you know whom to ask, writing a letter, calling or emailing are all appropriate ways to initiate contact.
Sometimes the apparent copyright owner is no longer the real copyright owner. The Copyright Office now provides online searching of some of its registration records and performs professional searches for a fee.
Confirming authority to grant permission
Whenever it is unclear who the owner is, or if the owner is a legal entity of some kind (a business or organization), you should be sure that the person giving you permission is authorized to do so. For example, if you are negotiating with an author, question her about whether she retained copyright or whether she assigned it to her publisher. Sometimes people are unsure. If you are preparing a commercial product, you will need assurances of authority to grant permission because your publisher will expect those assurances from you.
Ideally, your permission should be in writing and should clearly describe the scope of what you are being permitted to do. Vaguely worded permissions may not cover your intended use. Be careful here: describe what you want to do precisely and include alternatives if you are unsure of format. For example, if you are preparing a web-based multimedia product, you may wish to distribute it on physical media under some circumstances.
Permission does not have to be in writing. If you receive oral permission, precisely describe what you want to do, and then document the conversation carefully. It wouldn't hurt to send a confirming letter to the owner, asking him or her to initial it and return it to you if it accurately reflects your agreement.
When (or if) you get permission in writing, be sure to send a copy to Mark Roseveare to keep on file in the SCC Copyright Office.
Difficulty identifying the owner
If the author, creator or publisher is not obvious, such as may be the case for historical photographs, architectural drawings, personal papers or other archival materials, your task may be more difficult. Try the following:
Sometimes, even if you go through all the right steps, you may not figure out whom to ask or the owner may not respond. There truly may be no one who cares about what you do with a particular work, but the bottom line is that no amount of unsuccessful effort eliminates liability for copyright infringement. Copyright protects materials whether the owner cares about protection or not.
While it is possible that a thoroughly documented unsuccessful search for an owner would positively affect the balance of the fair use test under the fourth factor or lessen a damage award even if the court determines that there was an infringement, there are no cases addressing this issue, so it's only a theory. Because your institution is likely to be liable, along with an accused individual, for the infringements of faculty, students and staff, most institutions advise such individuals not to use works for which required permission cannot be obtained. But many institutions are beginning to look at this reaction more carefully, and may determine that at times there are important considerations favoring limited nonprofit educational use of materials that would counterbalance the risk of harm to someone's legal rights.
If an institution makes reasonable, but unsuccessful, efforts to find an owner, it may be willing to assume some risk if the counterbalancing benefit is significant. If it turns out that there is an owner who objects to the use, under the circumstances, taking the materials down most likely will adequately address the owner's interests. If the owner wishes to take things further, well, that's the risk...