Intellectual Property / Permissions question
 

Can anyone tell me whether an email from an author is a sufficient document to prove (if ever challenged) that one has received permission from the author to use a particular work?

If so, are there specific requirements regarding the email itself? (Wording of the question, wording of the reply, identifiability of author, etc.)

And if not, what kind of document must be obtained?

Thanks --

Claudia

Assuming there is no dispute about the authenticity of the email itself, I can't see why it wouldn't be sufficient. There's no magic language that is required other than language that clearly and unambiguously give you permission to do what you want to do.

And some formal permissions are just hard to acquire.
I would use what you can in good faith, and sort it out later if necessary.

Roger:

Thank you. I believe in hoping for the best and preparing for the worst. If heirs are friendly, I'm sure they will not look for anything to dispute. If, on the other hand, they do want a dispute, I suspect they will try to find something. I'm trying to be sure that if they ever feel that way, there will be no room for doubt. I'm thinking, maybe, a printed email with a "live" signature added to it....


John:

If only!


Thanks again --

Claudia

Claudia, that's why I stressed the use of clear and unambiguous language spelling out precisely what rights they are giving you. It need not be lawyerly language, just absolutely unambiguous and specific. Make sure you cover everything that you anticipate, e.g., what rights, how long, are the rights revocable, etc.

Though not necessary, if you want to make it arguably even more iron-clad, you could provide that they are giving you these rights in exchange for some form of consideration, e.g., $10, and send them that token sum.

Roger,
Thank you. Does the "token sum" apply even if the author is still alive, and a friend? Or only if the request is posthumous and addressed to heirs?

Consideration is an element of contract formation. In a nutshell, both parties to a contract must give something up for a contract to be formed. What they give up is called "consideration." It doesn't matter whether you're dealing with the author or his heirs, so long as it's the person who has authority to give you what you want. They give you the rights you seek, you give them the $10, and voila, it's a contract. I'm not saying this is necessary, mind you. I'd be comfortable moving forward based solely on their express grant of permission, especially since I'm assuming that there's little money involved.

Thank you again, Roger.

At one time even a peppercorn could be sufficient consideration (as in giving a peppercorn to cross the recipient's land). Without such consideration, there would be a "naked promise."

Allen, hmm, I would need to see a citation for that.

"The Masonic Lodge of St. George's, Bermuda, rents the Old State House as its lodge for the annual sum of a single peppercorn, presented to the Governor of Bermuda on a velvet cushion atop a silver platter, in an annual ceremony performed since 1816 on or about April 23.[14]

The Sevenoaks Vine Cricket Club in Sevenoaks, England, rents the Vine Cricket Ground from Sevenoaks Town Council at a yearly rent of one peppercorn. It is many years since the club paid only one peppercorn for the rent of the pavilion. The council, in return, gives a new cricket ball to Baron Sackville every year if requested.[15][16]

The University of Bath's main campus is on a 999-year lease from the then Bath City Council. Each year a peppercorn is presented by the Treasurer of the University to the Chairman of the Bath and North East Somerset Council as rent (but also to further the relationships between "town and gown").[17]

Ontario Legislative Building sits on land leased from the University of Toronto by the provincial Crown for a peppercorn payment of CAD$1 per annum on a 999-year term."

ALL FROM
Wikipedia, retrieved 12july2017.

Earlier but late countervailing views appear here.

There is of course Black's law Dictionary.

Freshly ground sea salt, anyone?

Allen, wow! Thank you, I think.

Meanwhile, here's another question: I have now secured a letter from the author, signed in ink. But it says "you are welcome to use...." rather than "you have my permission to use...." Is this a problem?

Claudia

Claudia, users of legal parlance sometimes rejoice in what can seem to groundlings as strained language (example: "naked promise") that verges on the bizarre or baroque. A little thought can usually anchor the idea. Thus, my reply has two prongs, the first of which has just ended. The second prong has to do with your question whether "you are welcome to use" equates to "have my permission to use". I think it surely does so equate, but another such as Roger Slater might want to assure you also.

Peppercorns, being a spice, were once a relative rarity, and had some real negotiable value in barter.

As I mentioned earlier, there's no magic language you need to use as long as the language is clear and unambiguous. Lawyers do like to use the same words over and over again in an abundance of caution, since they know to a certainty that those words have been tested in court and definitely work, but "welcome to use" sounds pretty clear to me so I wouldn't worry about it.

Mind you, the advice I'm giving you is practical advice, but if I were actually your lawyer I would feel obliged to insert lots of language covering a whole host of contingencies and side issues.

Ultimately, as you hinted above, I'd rather have a sloppy contract with an honorable person than a perfect contract with a dishonorable person.

Thank you, Roger!

The heirs are the wild card -- because I doubt I'll complete the project in the near future -- but I can only do my best.

Claudia

I had a similar question re a living (still, I hope) poet in Athens. When I last visited him he gave me oral permission to translate him without hindrance. But that, alas, was worth the paper it wasn't printed on. His son (a visual artist) soon became the email gatekeeper for his father, and very chary about replying to me when I asked for a follow-through. Soon the son stopped replying altogether. Since the percentage of his father's output that I wanted to translate was very small, and didn't amount to much in absolute terms anyway, I decided that the son could contemplate his navel forever without my bothering him, and I left that arena to the crows.

Allen,

It's very sad when an heir doesn't appreciate the value of literature except in monetary terms, since in most cases the money is very small. If I understand correctly, that seems to be what is going on in the case of the Athens poet you mention. I would think this is one reason for a writer to appoint a literary executor, unless he or she has an heir who does understand (or who may even be a writer as well).

Roger, do you think the idea of a $10 check (or a peppercorn) originated as a way to preempt that whole argument?

Claudia

Claudia, in this case, though I'm sure the idea of money to be made played some part, from what I saw of the son's paintings that hung in his father's place of business, I'd guess simple jealousy could be a factor, as well as possible political pressures from the son's peers. The father was not wealthy, but ran a small business to make expenses. What I saw of the father's poetry was not heavily promoted, and was not expensive. There were translations of a sort already, but they were not accurate or exciting, and were also very inexpensive and casually reproduced. The father had some local fame as a poet, which (I may be wrong) almost certainly overshadowed that of his son. His son's work was intense, surreal, and seemed ambivalent but very political. Athenian politics is a hell of it's own.

Claudia, the idea of the peppercorn is simply a reflection of the notion that courts will not typically inquire into the adequacy of the consideration being received or offered by either party. That means that a contract is a contract, and you can't get out of it by arguing later that you got a raw deal and gave up a lot more than you received. So even a peppercorn is sufficient.

I'm not sure that anyone ever actually gave a peppercorn by way of entering into a contract. I suspect it was actually just a figure of speech some judge or legal scholar came up with to express the idea that courts will not inquire into the value of the consideration.

Ultimately, from the perspective of contract formation, what matters most is that both parties clearly express their intention to be bound by a contract. The function of consideration is symbolic, since whatever it is (even a peppercorn), if the parties recite consideration they are clearly acknowledging their intent to be bound.

In the very early days when the whole idea of a contract was still new, there were other symbolic ways of indicating the parties' intent to be bound, including wax seals and witnesses and such. And if the contract was for the sale of land, it could only become effective if the parties were standing on the land itself and perhaps engaging in a symbolic act such as exchanging roses at midnight (or something like that . . . it's been a long time since I studied this).

Roger,

Thank you for this explanation. If only most lawyers were familiar with this historic use of a peppercorn, I would be sorely tempted to revise my contract to include same!


Allen,

That's very sad. But it might be sadder still if the father were jealous of the son.

The following quote from Abraham Mendelssohn Bartholdy (from a Wikipedia article about him) is exemplary of what I would consider a healthy attitude -- even if he was complaining:

"The son of the philosopher Moses Mendelssohn, Abraham is supposed to have complained to a friend, 'Once I was the son of a famous father, now I am the father of a famous son.' "


Claudia