The Monkey Selfie
Slate published this piece recently about a selfie-taking Celebes crested macaque and the copyright law consequences of the photograph. In the article, several people weigh in on whether the photograph is part of the public domain and free to use or not.
Slate published this piece recently about a selfie-taking Celebes crested macaque and the copyright law consequences of the photograph. In the article, several people weigh in on whether the photograph is part of the public domain and free to use or not. I think the analysis is spot on, but it only briefly touches on an important aspect of copyright law - how tenuous can authorship get before copyright protection is no longer granted? It's a tough question with no bright line rule.
Copyright protects "original works of authorship", which requires a minimum amount of original creative expression. For the selfie, the photographer will have a difficult time showing that the photograph was part of his creative expression since he did not intend for a monkey to steal his camera. The bar for minimum creative expression is relatively low, however, and he would have had an argument that authorship exists if he had intentionally left the camera out to achieve such photographs.
This also brings up the importance of contracts in situations like these. Had the photographer had terms of use for the photograph that did not allow for copying or distribution of the photo, he would have a breach of contract claim against the distributors regardless of whether copyright law protected the photograph.
Using Music: Do I Need Permission?
Understanding copyright law for music and when to get permission to use a song.
Q&A: “I’m making a video for my business that documents a project and isn’t used to sell a product. Do I need permission to use a song in the video if I credit the author of the song?” This is a great question and one that comes up often in the context of YouTube.
Copyright Law
We’re talking about copyright law because copyright protects original works of authorship fixed in a tangible medium of expression, which includes recordings of music.
As a general rule, you should always get permission from the owner before using the work for anything. Simply crediting the author doesn't get you past copyright infringement, especially since the author might not be the owner of the copyright!
Get Permission
In the US, copyright law gives the owner of a copyright the exclusive right to copy, display, distribute, prepare derivative works, and publicly perform the work. These exclusive rights can be individually granted to third parties in a license or assignment by the copyright owner, which we’ll discuss in a later post.
To use a song in a video you need to embed the audio in the video file. This involves making a copy of the song (an exclusive right) because the song file does not just transfer to the video – a copy of the song file is made when it is placed within the video file.
The song will also be performed (another exclusive right) because the audio plays during the video. Consequently, you will probably infringe on at least two of the exclusive rights if you don’t have permission from the copyright owner.
What happens if you don’t get permission?
If you’re lucky, the copyright owner will be happy you’re using the work (or just not find out) and leave you alone, but that’s a rarity considering that many owners vigilantly police their copyrights.
Most likely you will get a cease and desist letter that tells you to stop any and all uses of the copyrighted work and possibly pay the owner money to settle the issue or enter into a license. Cease and desist letters aren’t legally binding but they are a serious issue and you should consult an attorney if you receive one. Furthermore, there is no requirement to send a cease and desist letter first - you may just end up with a lawsuit on your hands.
If the alleged infringing use is online, then your service provider may also receive a “DMCA takedown notice” from the owner of the copyright, at which point your service provider is required to prevent access to the accused material. There’s a lot more to DMCA takedown notices but that’s getting outside the scope of this Q&A.
Fair Use
Okay, but do you always have to get permission?
First of all, remember the general rule: always try to get permission. But back to the question: no, you don’t always need permission, but there are very specific rules as to when you don’t.
The doctrine of “fair use” determines when you can freely use someone’s copyrighted work without permission. This includes purposes such as parody, criticism, comment, news, and education.
For fair use, courts look at:
- the purpose and character of the use, including whether the use is of a commercial nature or is nonprofit educational
- the nature of the copyrighted work (i.e. how creative it is)
- the amount used and how substantial that use is
- effect of the use upon the potential market for or value of the copyrighted work (i.e. will it make them lose money)
I never recommend that someone try using the fair use argument to start with. Going for fair use should be a last resort because it can be very difficult to prove, and the only way you can really prove it is in court, i.e., getting sued.
Even if you aren’t selling a product, a use can still be a “commercial use”. For example, a video that isn’t necessarily selling a product is still likely promotional and is not nonprofit educational.
Getting Permission
So if you're set on using a certain song, you need to look into getting permission by asking the copyright owner if you can use the work for a certain purpose. The permission doesn’t need to be in writing, but having it in writing (even just an email) helps if a dispute ever arises because you have something to look back on.
The tricky part with music is that the copyright in a recording is broken into two parts: the recording itself (the master sound recording), and the written music and lyrics (the composition) that the recording is based off of. If you want to license a recorded song, you need to get permission from the copyright owner of both the master recording and the composition.
The easiest way to do that is to go through one of the performing rights societies (ASCAP, BMI, or SESAC). They have the contact information for music publishers, which typically have the right to license the song. If it's a small band, you can try contacting them directly too.
Also, there are a few websites that have music available for this sort of thing. Some charge and some don't - depends on the type of license. If you want to try to find free music, I recommend starting with music licensed under Creative Commons, a nonprofit that provides free public licenses. You can find that here: http://creativecommons.org/legalmusicforvideos
The Take Away:
Get permission from the copyright owner by seeking out a music license. Fair use is a viable but risky alternative, and the recent Beastie Boys v. GoldieBlox is a good example of what happens when you avoid getting permission (*spoilers* GoldieBlox was sued).
Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.
Copyright in Characters: What Can I Use?
Learn how copyright law affects video game characters, and ways to avoid copyright infringement. This is the first part in a three-part series.
Q&A: “How do [some video games] get away with using so many famous franchise movie characters? We got DMCA'd for making a robot graphic that ‘resembled R2D2’.” Good question! The answer is actually more complicated than it might seem. Let’s dive into this:
Copyright Law:
For a work to qualify for copyright protection under current US copyright law, it must be an original work of authorship, fixed in a tangible medium of expression. “Original work of authorship” means it must be independently created by the author and possess some minimal degree of creativity. The creativity bar is pretty low, and most things will pass as being creative.
“Fixed in a tangible medium of expression” means that it has to exist somewhere somehow, i.e. writing something down, recording a song, or drawing a picture. Consequently, copyright law does not protect ideas; only the original, fixed expression of that idea by the author is protected.
The distinction here is expression of the idea. Actual copying of the expression of the idea is likely copyright infringement, especially in the commercial context, however copying only the basic idea behind the work is copying unprotected ideas and isn't copyright infringement.
Copyright in Characters:
For characters, the character only becomes protected under copyright law once it becomes a unique expression, i.e. drawing your own rendition of something or adding certain attributes. Concepts like robots, men in black, beefy army dudes with guns, samurai, etc., are called “stock” characters, and don't rise to the standard of creative until the author adds something more or expresses that concept.
This line can get pretty blurry, especially in the context of written stories since there often isn’t a visual element and the author must describe the character with sufficient originality. For video games though, the unique expression is the actual visual character created by the artist.
Famous Characters and Copyright Law:
Famous franchise movie characters, like Rambo, Snake Plisskin, and RoboCop, are protected by copyright law because of the copyright in the film and script, but only to the extent of the creative expression by the author. As I said earlier, copyright law does not protect stock characters. Consequently, any use of a gun-toting cyborg won’t be considered copyright infringement of RoboCop until that cyborg looks and acts like RoboCop.
Also, names alone do not have copyright protection. So just mentioning the name of a character won’t be copyright infringement without more.
The creators of some video games use stock characters and scenery that resemble famous movie franchises. This alone likely doesn’t infringe the copyright of someone else’s work if the game’s character art and scenery are original creations developed by the game company.
Do they bring to mind other notable characters in pop culture because of the context? Totally! But copyright law isn't concerned about that here. That's the area of trademark law, and there may certainly be trademark law issues going on there, as well as rights of publicity.
R2-D2:
So how about using a picture of a robot that looks very similar to R2-D2? Like I said earlier, the idea of robots is not protected. But the expression of a robot with three legs, half-sphere for a head, cylindrical, with blue and white ornamentation? Definitely protected - it's Lucas's expression of a robot.
The other thing about Lucasfilm though, is that they have many of their works trademarked as well. Trademarks are source indicators and trademark law is concerned with likelihood of confusion. So even making a robot that brings to mind R2-D2 could be trademark infringement. Lucasfilm also vigilantly polices its trademarks and copyrights, so I recommend steering clear of that territory.
The Take Away:
Characters can be protected by several theories of law, including copyright law, trademark law, and rights of publicity.
You can’t stop someone from suing you (even if you’re right), and using a famous character may not be worth the risk of a lawsuit, so think about getting a license or using your own original character before attempting to use a famous character.
- Bryan and James
Note: this Q&A was modified to remove the name of the video game referenced in the original question.
Read "Copyright in Characters: What Can I Use? Part II"
Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.
Sugar Man Lawsuit Focuses on Missing Royalties
The story of Sixto Rodriguez, popularized in the documentary "Searching for Sugar Man", highlights what is frequently an issue for recording artists and songwriters: payment of royalties. Sometimes it's poor accounting by labels or publishers, sometimes malfeasance, and sometimes artists don't know who owns the rights to their music because the copyrights have changed hands so many times. Maintaining copies of contracts and records of payment are key to sorting out and resolving royalty underpayment!
The story of Sixto Rodriguez, popularized in the documentary "Searching for Sugar Man", highlights what is frequently an issue for recording artists and songwriters: payment of royalties. Sometimes it's poor accounting by labels or publishers, sometimes malfeasance, and sometimes artists don't know who owns the rights to their music because the copyrights have changed hands so many times. Maintaining copies of contracts and records of payment are key to sorting out and resolving royalty underpayment! - - - -
The documentary “Searching for Sugar Man” tells the story of Rodriguez, an obscure singer-songwriter from Detroit whose albums were commercial flops when released in the early 1970s, but — unknown to Rodriguez and everyone around him — later became gigantic hits in South Africa.
One of the most intriguing questions raised by the film, which was released in 2012 and won an Academy Award, was why the singer never received the proper royalties for an estimated half-million album sales in South Africa.
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Video Painting and Copyright
Video painting is an intriguing art form that utilizes technology, photography, video, and performance art, while also being a fascinating study in copyright law.
Video painting is an intriguing art form that utilizes technology, photography, video, and performance art. I have always been a fan of works like these due to their transient nature and surrealist elements. Beyond the shear beauty that comes out of it, the copyright implications are also fascinating. On the one hand there is the copyright in the performance art itself as it is being recorded, but there are also the rights to the pictures, videos, accompanying music, art and design elements, and possibly the code written for the software. Just another good reason to make sure you know who owns what, and which elements you may need to license.
Check out this excellent recent installation by SWEATSHOPPE:
From the creators of the work:
"Video painting is a technology the duo developed that allows them to create the illusion that they are painting videos onto walls with electronic paint rollers they built. It works through custom software that they wrote that tracks the position of the paint rollers and projects video wherever they choose to paint, allowing them to explore the relationship between video, mark making and architecture and create live video collages in real time."
An Oregon Guitar Legal Battle
Selecting and developing trademarks and brands are frequently the most important decisions a business can make. Marks that appear secure may be open to attack years or even decades later. A lawsuit filed by Korg Inc. against Jack Meussdorffer highlights how even a long-standing, vigilantly protected mark can be open to attack.
Selecting and developing trademarks and brands are frequently the most important decisions a business can make. Marks that appear secure may be open to attack years or even decades later. A lawsuit filed by Korg Inc. against Jack Meussdorffer highlights how even a long-standing, vigilantly protected mark can be open to attack. - - - - "On Sept. 3, 2013, the multinational company Korg Inc. and its affiliates filed a complaint against Meussdorffer and his Phantom Guitar Works company, seeking to cancel several of Meussdorffer's long-held trademarks and claiming "tortious interference" with the brand's own models. Meussdorffer and his legal team filed a counter-claim, and the case has slogged on ever since."
http://www.oregonlive.com/music/index.ssf/2014/04/phantom_guitar_works_vox_korg_legal_battle.html - - - -
Big Labels Take Aim at Pandora on Royalties
The outcome of a new lawsuit filed by copyright owners against Pandora Media could have far-ranging consequences for recording artists, record labels, and internet music broadcasters. The RIAA and its constituents face an uphill battle, however. Who will survive, and what will be left of them?
The outcome of a new lawsuit filed by copyright owners against Pandora Media could have far-ranging consequences for recording artists, record labels, and internet music broadcasters. The RIAA and its constituents face an uphill battle, however. Who will survive, and what will be left of them? - - - - "The music industry has opened a new front in its war against Pandora Media: royalties for songs made before 1972.
On Thursday, several major record companies filed a lawsuit in New York State Supreme Court in Manhattan, accusing Pandora of violating the state’s common-law copyright protections by using recordings of older songs without permission. Along with a string of cases filed last year against Sirius XM Radio, the suit highlights an obscure legal issue that has come to the fore with the rise of streaming music online: that recordings made before Feb. 15, 1972, are not subject to federal copyright protection and may be missing out on tens of millions of dollars in royalties, according to industry estimates."
About Our Posts
We'll be posting on topics relevant to the creative community, including industry guides and updates in trademark and copyright law.
We'll be posting on topics relevant to the creative community, including industry guides and updates in trademark and copyright law. If you have a question or a topic that you want to learn more about, drop us a line over on our contact page. We'll get back to you as soon as we can and may feature the Q&A as a post!