18 Figure reuse rights

Desired Result

Reusing limited amounts of properly attributed material, such as a figure or short excerpt, from one academic paper in another paper is a very common practice. Including a figure reuse clause in the license agreement allows Authorized Users to reuse figures, images, and segments of text from the Licensed Content without having to get individualized permissions or conduct a fair use analysis.  This is an excellent benefit for end users who are writing their own works.

Essentials of the Law

Using an image, short quote, or figure from an existing publication in the course of writing a new paper can frequently be a fair use under US copyright law,^[1] as well as foreign laws that provide for a “quotation right.”^[2] Whether a particular reuse is a fair use will depend on the specific facts, but generally when images or figures are being reused in an academic publication it is because the new publication is either building upon or critiquing the prior work, which can be a strong indication that the use is covered by fair use.  If your contract has a fair use savings clause, therefore, it may seem redundant to include a figure reuse clause as well.  A figure reuse clause is useful, however, for several reasons.  First, it provides clarity and saves end users the time and effort required to conduct and document a fair use analysis for each reused item.  In many cases, it may also satisfy requirements for end user authors who are required by their publisher to provide documentation of image permissions.  Finally it can be helpful for end user authors who are located in jurisdictions (or who have publishers located in jurisdictions) where fair use does not apply.

Desired Language

Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materials in the Authorized User’s own scientific, scholarly and educational works.^[3]

Tricks and Traps

This clause is likely to be uncontroversial with academic publishers.  Indeed, many academic publishers have signed on to the STM Permissions Guidelines,^[4] which provide similar reuse rights to authors who are using a figure from a signatory publisher’s content in a publication being published by another signatory publisher.  Inclusion in that list can be a good argument for allowing a figure reuse clause, but can also sometimes turn into an obstacle if the licensor wants to rely on those guidelines instead of a figure reuse clause.  The benefit of a figure reuse clause over reliance on the STM Guidelines is that the figure reuse clause is generally more straightforward for end users to make use of and is not restricted to reuses within the universe of signatory publishers.  Including a figure reuse clause also creates an enforceable reuse right for the licensee that cannot be unilaterally withdrawn by the publisher.

It should be noted that a figure reuse clause will not apply to any included content that the publisher doesn’t have the right to sublicense.  If the publisher is doing their job they have sufficient rights in all included figures to distribute them, but they may not have sufficient rights to authorize downstream reuse.  Publishers who are particularly sensitive to this may want to specify this exclusion in the license language, which is reasonable.  The library, in turn, should include this in their documentation for end users of this benefit.

More generally, informing end users of this license term is also particularly important in this case, as this term will be useful to end users only if they are aware of the benefit when they are publishing their own work.  It is also important that users be able to provide documentation of these rights, if they are asked to document permission by a publisher.  A public webpage such as this one by MIT, that end users can use as documentation of the terms can be useful in this case.

Importance and Risk

While this clause provides a very useful benefit to authorized users, it is not necessarily the most important in the agreement.  If it cannot be included, a robust fair use savings clause can still provide similar reuse rights to end users.  Other avenues for permission are also generally available to end users, either through the STM Permissions Guidelines or individual licensing.  The risk, however, is that without a figure reuse clause end users may be led to purchase licenses for figure reuse that are not legally necessary (if the use would be a fair use) and can be extremely expensive.  This is a “nice to have” clause, rather than a “need to have” for most institutions, but is a very nice benefit to include that is also in line with existing rights and user expectations.