A perennial question we receive at the ASA is whether or not permission is required when quoting another author in your work.

For example, many writers use epigraphs as a preface to their work, either as part of the preliminary pages or at the start of every chapter. Rebecca Starford chose to quote Brazilian novelist Clarice Lispector at the beginning of The Imitator: “Who has not asked himself at some time or other: am I a monster or is this what it means to be a person?” Either as homage or humour, inspiration or contrast, quoting from others’ work can add depth to your own.

But when do you need permission? And how do you get it? 

Here are the basics:

If copyright has expired, there is no need to seek permission or make any payment. That’s why anyone may freely quote from Jane Austen or Kahlil Gibran. For example, Richard Flanagan quotes the English poet John Clare at the beginning of The Living Sea of Waking Dreams, a sorrowful hint at the themes to come. And Elliot Perlman quotes Shakespeare in his epigraph in Maybe the Horse Will Talk: “The law hath not been dead, though it hath slept”.

If copyright has not expired, the next step is to consider whether you are using a “substantial part” of the original work. Only the use of the whole, or a “substantial part” of a literary work requires permission. The biggest difficulty is that a “substantial part” is not determined solely by the length of the quote, but also by whether you are using the distinctive or essential part of the original work. This is where you may need guidance. Your first port of call ought to be your publisher who will be experienced in quoting from other work, and the Copyright Council for legal advice on the use of quotes. 

If you do need permission, it is occasionally difficult to track down the rightsholder. Generally, it will be the publisher who grants permission to quote from a book provided they still hold the exclusive rights. You might have seen the “rights and permissions” section on many publishers’ websites. Wherever possible, allow time to lodge a request for permission as you can typically wait weeks to hear back, rather than days. If the book from which you wish to quote is out of print and the rights have reverted to the author, then it is the author who grants permission. 

How much will you have to pay? There is no easy answer to this because there are no set rules. Sometimes, nothing at all. Publishers will commonly determine this fee, meaning payment is a commercial negotiation. For substantial extracts, the ASA has sometimes used the following formula as a starting point in negotiations: 

(no. of words in extract / total word count of book) x (10% royalty of Recommended Retail Price) x print run 

You can see that if the quote is small, payment will also be correspondingly tiny. 

If you cannot find the rightsholder, you then have the difficult task of determining whether you want to include the quote anyway, and bear the risk of infringement. This decision should be made in conjunction with your publisher. If you don’t have a publisher, seek the advice of the Copyright Council. 

What about fair use? We hear some authors wonder whether their quoting is permissible under the “fair use doctrine”. Fair use is an American legal concept and is not part of Australian law. What we do have is “fair dealing” exceptions to copyright in Australia such as parody or satire, and criticism or review, and again we suggest you seek guidance from the Copyright Council as to the applicability of these exceptions to your circumstances.

Please remember that merely acknowledging the author of the quote or extract is not a substitute for permission. 

The copyright expert in Australia is the Australian Copyright Council. If you have any questions relating to copyright, you should head to their website first. They publish information sheets such as: Permission: Do I need it? and Quotes and Extracts and also offer free legal advice to creators. We see many authors paralysed by angst over whether or not it’s acceptable to quote from other works, and we encourage you all to access the expertise of the Copyright Council, because you may be surprised by what is permissible. 

If you have additional questions, are unsure about how to proceed, or how to find a rightsholder, do not hesitate to request advice from the ASA via our free members-only Advice Service.