Q. Do I have to get the rights to use trademarked or copyrighted material in my manuscript, or will my agent do it for me?
A. Copyright is such a complicated area of law with so many grey areas that a scholar could scour dozens of volumes of literature on the subject and still not have an answer to this seemingly simple question. Some important concepts to keep in mind are: One owns the copyright to what one writers, whether the copyright is registered or not; anyone can sue anyone; and ideas are not copyrightable.
When you use other people's copyrighted works in your work, it is important to obtain a formal written and signed permission form from each person whom you quote. Authors are responsible for determining whether permissions are necessary and they must procure them - not agents. Publishers will often assist in this endeavor by providing the permission forms and guidelines, but most publisher-author contracts will put the entire onus on the author to find out whether permissions are necessary to obtain for extracts and quotes, and to procure them. Even when publishers do help, the contracts will usually require the authors to indemnify the publisher against all claims (even frivilous claims), suits and judgments related to this aspect of the publishing agreement. Persistent agents are sometimes successful at getting some publishers to take responsibility for frivolous claims, but it's rare that they'll take the responsibility for obtaining permissions. When in doubt about questions of copyright, it's always advisable to consult an attorney."
- Sheree Bykofsky, literary agent and author of The Complete Idiot's Guide To Getting Published. Reprinted from the 2007 edition of Guide to Literary Agents.
Also on the topic of copyright law
and vetting memoirs, stay tuned to
the blog for an upcoming interview
with attorney and literary agent Paul Levine.