Copyright is frequently misunderstood, especially by those of us who are content creators. This is an introductory level article to cover some of the most common misconceptions.
When it comes to copyrights, there tends to be two extremes. Some people take the “don’t care” approach. They think they will never get caught and so they blatantly disregard clear-cut copyright principles. The other approach is the “don’t copy” approach. These people are so afraid of breaking the law that they live in fear and won’t record or copy anything. The answer lies somewhere in between.
You certainly ought to become familiar with copyright laws and principles. There are expensive penalties and legal fees in addition to the damage to your professional reputation. Some scenarios aren’t clear cut and you may wish to seek legal advice from an intellectual property lawyer. We live in a “cut and paste” society where the internet has made it very easy to steal the works of others. You are a professional and you should operate ethically. You shouldn’t have to always be looking over your shoulder and hoping that your project doesn’t get distributed too widely or that you don’t get caught.
Do what’s right to the best of your ability. If it’s doubtful, check it out and if you don’t know for sure then don’t do it.
What are copyrights?
According to the U.S. Copyright Office (which is part of the Library of Congress) copyright holders have the exclusive right to:
- reproduce the work in copies or phonorecords (The word “phonorecord” includes cassette tapes, CDs, and vinyl disks as well as other formats.)
- prepare derivative works based upon the work
- distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
- display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
- perform the work publicly in the case of sound recordings by means of a digital audio transmission
You can tell the wording is a bit dated and formal. Perhaps you have never played a vinyl “phonorecord.” But many of our readers are producers of creative projects. If the situation were reversed, you wouldn’t want someone to claim your work as their own (even if they changed it slightly so most people wouldn’t recognize your stuff), or profit from your talent. Extend this same courtesy to other content creators even if at times the rules seem nitpicky or hard to enforce. Let’s practically apply some of the principles of copyright and shatter some common misconceptions.
If I make something new, the copyright belongs to me…
Suppose a local company wants to do emergency preparedness training for their employees. So they ask you to use short clips from the movie Titanic to show what not to do when folks are panicking, interspersed with information from the local company about their corporate disaster policies. You may think that since you’re making this new creative video that you own the copyright. You can’t just use someone else’s creative work, incorporate it into your own and call it yours. As a matter of fact, this would probably be called a derivative work which only the copyright holder has the right to do (see #2 above). The producers of Titanic could give (or more likely sell) permission to use clips from their film in this way but I wouldn’t count on it.
But I own the movie! I paid for it and so it’s my property to do with what I wish…
You own a copy of the movie which may legally watch in your own home with a close circle of family or friends. Selling you a copy of the movie was one of the rights of the copyright holder (see #1 above). Have you seen the FBI warning at the front of most home movies? That brings up another copyright point (see #4 above). You don’t have the right to “perform” or “display” the movie “publicly.” You can’t show commercial DVD’s for your club, or church youth activity, or for a fundraiser.
But I’m not charging anything to show the DVD, (or for the video I produce)…
If you think that since you’re not charging that you’re in the clear, you’re wrong. It could affect the damages awarded in court, but it doesn’t protect you from prosecution. In the previous example, it doesn’t matter whether you charge admission or not. You need to have a public performance license because only the copyright holder has the exclusive (copy)right to show their film publicly. There are companies that provide “blanket” licenses (for instance, for playing background music in public places). The question really isn’t whether you make any money or not. It is using someone’s creativity without compensating them for it.
I’ll just put the name of the song in the credits at the end…
That works fine for giving credit for a book you used in a term paper, but it isn’t sufficient for music or videos. Attribution isn’t enough. You need to make arrangements with the copyright holder.
I don’t see a copyright notice. I don’t know how to make contact with the copyright holder, or I know they are dead, and this song or video is just perfect…
In the first place, just because something doesn’t display the © symbol doesn’t mean that it is in the public domain. Out-of-print doesn’t mean out of copyright. There are ways to trace the copyright status of a work if it is really crucial to your project.
But I heard about something called “fair use.” I think it is only fair that I be able to use a DVD I own…
That’s not what “fair use” means. Not every use of a copyrighted work is an infringement. The law makes provision for using copyrighted materials for purposes of criticism, comment, news reporting, teaching (in face-to-face educational settings), scholarship, or research. Here are the criteria which will be explained more in upcoming tutorials. To determine a fair use, you must consider:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Suffice it to say that if you are selling something (even to schools) then that makes it a commercial use which is not likely to be a “fair use.” If you are profiting, so should the copyright holder. Fair use normally applies to educational uses. On the other hand, not all nonprofit educational uses are automatically allowed.
I videotape ice skating performances that use background music tracks. I edit the videos and sell copies to the parents. I don’t have to pay to use that music, right? This is an ice skating video, not a music video…
If you are manufacturing and distributing copies of a song which you did not write, and you have not already reached an agreement with the song’s publisher, you need to obtain a mechanical license. This is required under U.S. copyright Law, regardless of whether or not you are selling the copies that you made. There is a set fee per song per copy. These are called “mechanical licenses.”
If your business is creating “intellectual property” you should know both your rights and your responsibilities.
The Harry Fox Agency handles mechanical licenses. But in this example, there may be several people to pay and you likely need permission to even use the song. For instance, suppose they skated to Whitney Houston’s rendition of I Will Always Love You. Dolly Parton wrote that song. So if you wanted to sing it yourself and record it in your home studio you would just have to pay Dolly Parton a royalty fee per copy you copied to sell or give away. But to sell copies of the Whitney Houston recording, you would have to negotiate with the record label and pay both the composer and the performer. ASCAP and BMI represent composers and performers. For this example, you would possibly be safer to record the ice skaters but substitute other royalty-free music.
The ice skating teacher says her choreography is copyrighted and that I have to give her a royalty for each video I sell.
Well, she has that right. Choreographed works are also included in the copyright regulations above. This brings me to the point that you shouldn’t just assume what you can do or can’t do. Read up on intellectual property, attend a seminar, or consult an IP lawyer. If your business is creating “intellectual property” you should know both your rights and your responsibilities.
If it’s on the internet already, it’s in the “public domain” and I can use it freely, right?
Wrong again. The public domain includes things for which the copyright term is expired or which cannot be copyrighted, including most works by the government. Most things on the internet are copyrighted unless the creator specifically relinquishes their rights. Creative Commons is a means to license your works if you would like to allow certain uses under certain conditions or to find this type of licensed works.
I created a really neat animated logo. But the company I made it for says I can’t use it in my demo reel. Since it is my production, can they do that?
It depends on who owns the copyright. If your contract says you are doing a “work for hire” it is likely that the company who hired you holds the copyright even though you did the work. Most of the major studios operate this way.
Hey, it’s free advertising for them…
The one who owns the copyright or trademark gets to decide whether they want free advertising. For instance, here is the link for the guidelines for the use of the Apple® trademark in your literature or productions.
Okay, then, I want to copyright the name of my video editing business…
Sorry. You can’t copyright slogans, titles, names, and short words and phrases. You may be able to apply for a trademark. See the Patent and Trademark Office for more information
But I don’t even live in the United States. Why should I care about U.S. copyright laws?
The Berne Convention is an international agreement where the member countries agree to abide by the copyright regulations of the other nations. We have become such a global economy that as a professional you ought to respect and in good faith abide by copyright principles as closely as possible.
Okay, we’ve talked enough about other people’s rights. I want my own video productions to be copyrighted. What do I do?
I’m planning an entire article series for Tuts+ on copyright and trademarks for the creative professional. Until then, check with the U.S. Copyright Office and they have a variety of helpful brochures.
There is a difference between copyrights, trademarks, and patents. Since Adobe® After Effects® (notice the registered trademark symbols) users often animate logos it is important to know how to legally use and register trademarks so we will also talk more about that in the future.
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