Tuesday, October 23, 2012
Failure to Respond to a Permission Request: What Does it Mean?
Why seek permission? If permission is unnecessary for a fair use defense, why ask for it? First, acquiring permission bypasses the need for a legal dispute (and the uncertainties and expenses associated with it). Second, seeking permission also demonstrates your good faith and may mitigate the damages assessed if your fair use defense fails and there is a negative decision against you.
Does a failure to respond to a permission request mean that there is a lower risk of being pursued. We doubt it. Although, as anecdotal evidence, we can offer this story: Our mom called a lawyer at a well-known movie company for permission for her nonprofit to use a licensed character in a presentation. His response, "You never made this call." In other words, having to say "no," would have obligated the attorney to follow up.
FYI Dept. -- Silence doesn't mean legal assent. We remember getting letters from lawyers that would say things like, "A failure to respond shall confirm blah, blah, blah." But 99.9% of the time that's just not the case. Inaction, or silence rarely triggers any legal conclusion (either affirmative or negative). For example, there's a famous 19th-century English contract case in which a man offered to buy a horse and stated that unless he heard otherwise from the seller, “I consider the horse mine.” The British court ruled that his assumption didn’t create a contract; the other party’s acceptance had to be clearly expressed.