While it’s easy — even fashionable — to rail against current copyright law, most video production for commercial distribution abides by the rules. And while there’s no reason you need to be aware of the rules and restrictions in clearing rights for projects to share with friends, the second you begin to make money on your video, the game changes. For starters, if your project is making money, it makes you a much more attractive litigation target.
I spoke with my old friend, independent production manager Robby Fahey, who’s been working in commercial and documentary production for over a decade. She’s also worked on projects produced specifically for the web, including “Off the Map” and “Circle of Stories.” These were produced as part of ITVS’ Electric Shadows online storytelling projects. Read on for her answers on questions about copyrights, contracts and other legal fun stuff that you may not have thought about, but lawyers somewhere already have.
Where does one draw the line between documentary or news and entertainment when it comes to fair use of copyrighted material?
Legally speaking, that’s not how it’s divided up at all – from the outset, it’s not about the market or the profitability of the final piece, it’s about how copyrighted works are USED in the piece.
Section 107 – remember it kids – of the Copyright Act defines the potentiality of a fair use defense as copyrighted work used “for purposes such as criticism, comment, news reporting, teaching…scholarship or research…”
Generally, it’s all about commentary. How can you prove, or how can your entertainment lawyer prove, that the nature of your use of the copyrighted work is critical. A limited excerpt of the work during a review or critique is clear cut fair use. The use of the work in a way that seems only to increase the production value of your work, without adding depth of content to it, will look very fishily like something that needs to be cleared.
Another fun thing to mention is the “Sonny Bono Copyright Term Extension Act” of 1988 which extended term of copyright by 20 years, basically saving Disney from having to give up rights on the original Mickey Mouse shorts. So anything that you think may be in the public domain now might be protected by this act, so you can’t assume that something that is 75 years old is automatically in the public domain, and you have to do the research.
What kind of flexibility am I given if my content is being produced for non-commercial purposes?
None just because it’s non-commercial –- but usually non-commercial means public service documentary, and that’s a defense for fair use.
Have online distribution rights been negotiated as part of rights clearance contracts?
Oh yes, online distribution rights are all over the place in terms of how they play out contractually, so be clear about your intended uses – markets, promotional, etc. It’s funny that these rights are still being defined by the technology and not by the market – for instance streaming rights imply that there is an ability for anyone to grab this content and look at it indefinitely for free, whereas download may expire, and download for $1.99 means that the viewer now owns the content. The only good advice at this point, until the standards catch up with how the technology is being used – is to get as much as you can with as much open ended language as you can (for use in any media now existing or hereafter devised…) – and to not forget about clearances for promotional use.
How about insurance? Do insurance companies cover rights clearance in the case of online distribution, or do they just cover the liability of the contract generally?
They’ll cover the contract, so the contract must stipulate online uses.
What about trademark rights? For instance, the classic use of no-brand sports team apparel because of no league approval?
Now here’s where it’s about “actuality” – and the kind of piece you are creating. It goes back to the factors of fair use: Is this logo just appearing accidentally in the background of a shot? If it’s verite of a documentary subject buying sneakers, and the point of the scene not being the sneakers themselves, then that’s clear fair use.
It’s also about commentary –- Hank Willis Thomas’ use of trademarks is obvious, and an excellent example of fair use.
What’s not? A commercial project that uses a certain logo as a motif – as part of the story – in a way that adds to the story without being critiqued in any way.
What’s my liability if, in fact, I’m found to be infringing? Profit? Revenue? Distribution injunction?
Cease and desist letter first, then it all depends on your reaction to that and if there is profit, whom it’s with.
What are some online resources and organizations that I could refer people to for more help?
Center for Social Media. Anything coming out of Indiana University to do with rights, use and higher education lately is really great: Indiana University Copyright Management Center. Best copyright site ever: Benedict O’Mahoney’s Copright Website.