This is one of a series of questions submitted by attendees of the Copyright, Common Mistakes and Myths Webinar and answered by Laura N. Gasaway, author of Pocket Copyright Guide for Publishers.
Question: If we wish to print a poem in a magazine and have tried for months to either find the copyright holder or get a response from the copyright holder, is it OK to publish the poem with a line that says something like “Every effort has been made to contact the copyright holder” and also add that should the copyright holder come forward at some point we will publish the proper credit line as a correction?
Answer:It is unclear what you mean by “OK.” The copyright owner may come forward and demand royalties after the fact, and if the journal has published the poem without permission, it must pay. You might be able to negotiate for a lower rate, but the journal is bound to pay. The fact that the journal has tried and tried to get permission does not excuse the use without permission. It is possible that the solution you offer would be accepted by the copyright owner without any royalties, but it is definitely the copyright owner’s choice.
What the journal must do when it cannot find the owner is determine how important publication of the poem is to the journal. In other words, is the journal willing to assume the risk? The risk may be small or even nonexistent, but it is still a bit of a risk.
Pocket Copyright Guide for Publishers by Laura N. Gasaway and edited by Iris Hanney contains information vital to the publishing community.