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Fair Use & Copyright (Excerpt from Summer A/V Workshop)

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  • 1. Audio / Video for Slidecasts & Podcasts Giving Life to Online Media July 24, 2010
  • 2. Intellectual Property There are many definitions of Intellectual Property, but my favorite is: “a substantive and original creative endeavor” Our government values these efforts, and thus gives the creator certain rights: Copyright – protection against copying the work Trademark – protection against copying the marketing of a work Patent – protection against copying the idea Trade Secret – protection against disclosure of secrets photo credit: iStockPhoto
  • 3. Basis of Intellectual Property They are granted by Article 1 of the US Constitution because they serve the common good “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” All of these rights are about property, and thus are about protecting income of the creator photo credit: ComLibrary on Flickr
  • 4. Intellectual Property Worldwide The Berne Convention in 1886 provides some basic common ground between different countries laws However, there are still subtle differences between property law in the US as opposed to those in other nations Canadian law largely follows US law EU law has more differences, but increasingly is following US model photo credit: iStockPhoto
  • 5. Copyright Copyright covers any substantial work that is not an invention Protects the right to make a substantive copy of a work Protects against even giving away copies The creator chooses who to license copyrights to In US every work of creator automatically has copyright Thus it is actually hard to make something public domain
  • 6. Copyrightability Not everything is subject to copyright It must be original You can’t copyright a work that is already subject to copyright, or is already in the public domain It must be substantial Definition of substantial depends on the medium, a few sentences from a poem could be copyrighted It must be embodied Copyright does not protect ideas, only the specific embodiment of an idea photo credit: iStockPhoto
  • 7. Limited Time & Public Domain US copyright is limited in time However, these limits have been changed by congress many times, i.e.“the mickey mouse protection act” Any US work before 1922 is no longer under copyright, and thus is “public domain” Public domain means there are no restrictions on use by the public at large Many works after 1922 may be public domain, but it can be difficult to establish All works after 1978 are copyright for the life of the author + 70 years, or 120 years 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993
  • 8. Copyright Additions Over the years copyrights have been extended as new technologies are invented Derivative Copyright People can’t copy works that are directly derivative variants of your work, the same medium or another medium Look and Feel Copyright You can’t copy something so much that it looks like something else, even if the underlying embodiment is different Compilation Copyright A collection of works that are individually copyrighted may be copyrighted separately as a collection photo credit: Hannes Grobe on Wikimedia Commons
  • 9. Fair Use Under US law since 1978, the property right of copyright has some other limits, which may allow for “Fair Use” Factors considered to determine “Fair Use” are: The purpose and character of the use, i.e. commercial or non-commercial The nature of the copyrighted work The amount and substantiality of the work The effect of the use on the potential market
  • 10. Problems with Fair Use Other then the basics considerations, there is very little case law about Fair Use Purpose & Character There is no “I changed it” rule Nature There is no “It is just a photo of the art” rule Substantiality There is no “I credited the source” rule Affect on Market There is no “I didn’t make any money on it” rule
  • 11. Fair Use Best Practices Until recently “Fair Use” has been in decline no standards meant confusion insurance companies would not insure without releases, thus corporations would not publish However, in 2005 the Center for Social Media published Documentary Filmmakers’ Statement of Best Practices in Fair Use This has been followed in 2009 by Code of Best Practices in Fair Use for Online Video None of these best practices have been tested in case law photo credit: EFF.org
  • 12. Documentary Best Practices • The 2005 Documentary Best Practices 1. You may comment on or critique copyrighted material limit: use not so extensive that is no longer a critique but instead is a market substitute 2. You may use copyrighted material for illustration limit: you should have multiple quotations from multiple sources, no longer then necessary for illustration, quotations should be attributed, and use should not be a substitution for shooting new footage
  • 13. Documentary Best Practices 3. You may capture copyrighted material incidentally or accidentally limit: material must not be staged or directed, the captured content must does not constitute the scenes primary point of focus 4. You may use copyrighted material in a historical sequence limit: the material can’t be available from authorized sources, should use multiple sources, and the amount of use can’t be disproportionate
  • 14. Social Video Best Practices • The 2009 Social Video Best Practices: Changed #4: You may reproduce, repost, or quote in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon limits: the same 5: You may copy, repost, and recirculate a work or part of a work for purposes of launching a discussion limits: intent must be clear, social discourse must be possible
  • 15. Documentary Best Practices 6. You may quote in order to recombine elements to make a new work that depends its meaning on (often unlikely) relationships between the elements limits: The content must be recombined, the audience should be different then for the original work, the amount of use may not be excessive, and use must be for more then evoking just a mood i.e. A song may not be used in its entirety as a sound track just because it evokes an emotion of the moment. The juxtaposition must change the meaning.
  • 16. DMCA & Takedown DMCA (Digital Millenium Copyright Act) is the US law protecting copyright holders online If someone thinks your content might be violating their rights, they may issue your ISP a DMCA Takedown Notice Your ISP must notify you and take down the content unless counter-notified to preserve their “safe-harbor” under the DMCA You can, and should respond with counter- notification. See ChillingEffects.org
  • 17. Creative Commons So people choose to share their works, under copyright law, but with limitations One such license is Creative Commons Creative Commons licenses are not an alternative to copyright. They apply on top of copyright, so you can modify your copyright terms to best suit your needs. The Creative Commons website offers many tools to assist you in licensing your works You can search for Creative Commons licensed material using Google, Yahoo, Flickr, etc.
  • 18. CC Choices Attribution: You let people copy, distribute, display, perform, and remix your copyrighted work, as long as they give you credit the way request. All CC licenses contain this property. Non-Commercial: You let people copy, distribute, display, perform, and remix your work for non-commercial purposes only. If they want to use your work for commercial purposes, they must contact you for permission
  • 19. CC Choices Share Alike: You let people create remixes and derivative works based on your creative work, as long as they only distribute them under the same Creative Commons license that your original work was published under. OR No Derivative Works: You let people copy, distribute, display, and perform only verbatim copies of your work — not make derivative works based on it. If they want to alter, transform, build upon, or remix your work, they must contact you for permission.
  • 20. Other CC Licences Creative Commons is experimenting with a number of other licenses Remix – Special version of CC for music remix PDDC – Explicit public domain declaration CC0 – No rights declaration, or CC0 CC+ – Commercial Rights Available
  • 21. Releases & Permits In most cases Free Speech obviates need for releases and permits However, releases can be useful for important parts of your creative work Model Releases: Invasion of privacy, right of publicity, defamation Property Releases: Some properties are covered under copyright or trademark law Some local municipalities or states limit public filming, in particular for commercial purposes However, for non-commercial projects most permits are free
  • 22. Flickr Image Search First place to look for photos. Use advanced search and select: “Only search within Creative Commons-licensed content”
  • 23. Google Image Search Second place to look for photos. Use advanced search and select: “return images that are labels for reuse”
  • 24. iStockPhoto No Creative Commons licensing, but most web-sized versions are very cheap (~$1.00) Photos are often very evocative
  • 25. TinEye.com Sometimes you are fairly certain your image is creative commons or licensable, but can’t find the original source. TinEye is a search engine for images like your image.
  • 26. PodsafeAudio Good source for music, however, most are restricted against commercial use
  • 27. Magnatune Music label with creative commons non-commercial content, but easy to license commercial rights
  • 28. SoundSnap iStockPhoto-like source for special effects and jingles
  • 29. Questions? Feedback? ChristopherA@LifeWithAlacrity.com