Copyright Law for Video
A Presentation by Attorney David M. Slater
© 2014 David M. Slater. All rights reserved.
www.davidmslater.com
Legalese
Disclaimer: No attorney client relationship is
created with this presentation and no legal
advice has been rendered. This is for general
informational purposes only and does not
apply to any specific set of facts which have
been reviewed by me. The information
contained in this presentation has not been
fully verified and is not necessarily accurate
or reliable in all instances and jurisdictions.
Always hire a licensed attorney to represent
your legal interests.
-The Law Offices of David M. Slater
What is Copyright Law?
• The copyright law is derived from the US Constitution. The Copyright
Clause of the Constitution (Art.1, § 8, Cl. 8) empowers Congress:
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.
• The last major amendment of the copyright law was The Copyright Law
of 1976 (Title 17 of the US Code). Federal copyright law exclusively
governs copyrights and preempts state laws.
What is Copyright?
Title 17, § 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title,
in original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device. . .
Copyright – Exclusive Rights of Owner
Title 17, § 106. Exclusive rights in copyrighted works (emphasis added)
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive
rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion
pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) 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, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a
digital audio transmission.
What Copyright Is Not
There are three major types of Intellectual Property (IP): Copyrights,
Trademarks and Patents. Each is protected by its own set of laws:
• Copyright laws protects certain original expressions of ideas.
• Trademark laws protect trademarks, which are recognizable signs,
designs or expressions that identify products or services of a particular
source.
• Patent laws protect inventions which are products or processes designed
to solve specific technological problems.
Copyright Categories
Works of authorship include the following categories (emphasis added):
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
literary works;
musical works, including any accompanying words;
dramatic works, including any accompanying music;
pantomimes and choreographic works;
pictorial, graphic, and sculptural works;
motion pictures and other audiovisual works;
sound recordings; and
architectural works.
Idea/Expression Dichotomy
Copyright law protects specific expressions of ideas, but not the ideas themselves.
A movie describing the story and characters of a crime family, for example, is
copyrightable. It may not be reproduced or adapted without the author's permission.
But the general idea of a crime family (which is an idea rather than a specific
expression) is not copyrightable. Another author is free to describe the same general
idea in their own film without infringing on the original author's copyright.
However, it is not always easy to separate ideas from the expression of ideas. As
Judge Learned Hand observed:
Obviously, no principle can be stated as to when an imitator has gone beyond
copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore
inevitably be ad hoc.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487
(2d Cir. 1960).
Some General Copyright Principles
• Originality Requirement. Works that are not "original works of
authorship fixed in any tangible medium of expression" are not subject
to copyright. So unoriginal works (like a re-typing of the Bible) and
unfixed works (like an unrecorded improvised performance) are not
subject to copyright.
• Facts. Facts are not copyrightable, but creative compilations of facts
are copyrightable.
• Not Copyrightable: typeface designs, fashion designs, useful articles
(lamps, computer monitors, bathroom sinks), blank forms, titles, names,
short phrases, slogans, lists of ingredients and contents (e.g., recipes
with no creativity), URLs, links, domain names, band names and works
by the federal government. But note that some of the foregoing may be
protected by trademark and design patent laws.
Fair Use, Parody, and First Sale Doctrine
• The Fair Use Exception (17 U.S.C. § 107) states that "the fair use of a copyrighted work ... is
not an infringement of copyright." There are four factors that must be assessed to determine
whether a particular use is fair. (More about this later)
• Parody is not an infringement of copyright. Parody "is the use of some elements of a prior
author's composition to create a new one that, at least in part, comments on that author's
works." Campbell v. Acuff-Rose Music, Inc. That commentary function provides some
justification for use of the older work. A satire, on the other hand, is not targeted at the work
borrowed from, and does not require use of the original work to make its point.
• The First Sale Doctrine (17 U.S.C. § 109) is a limitation on the rights of copyright holders to
prevent the distribution and display of copies of their works. The owner of a particular copy is
entitled to "sell or otherwise dispose of the possession of that copy" and to "display the copy
publicly ... to viewers present at the place where the copy is located."
Copyright Registration and Notice
• Since 1989, when the US joined the Berne Convention, copyright
registrations and notices are no longer required for copyright
protection. The copyright to a work is automatically created upon
the fixation of the work in a tangible medium.
• However, utilizing a copyright registration and notice will often
afford greater damages in a federal infringement action.
• A good form of copyright notice is:
© 2014 John Doe. All rights reserved.
Duration of Copyright
• Works created in or after 1978 are extended copyright protection
for a term ending 70 years after the death of the author.
• If the work was a work for hire (e.g., those created by a
corporation) then copyright persists for 120 years after creation or
95 years after publication, whichever is shorter.
Who Owns the Copyright to a Video?
Generally, if a video does not meet the requirements of a “work
made for hire,” the copyright to the video is owned by the person
or organization that shot it.
But, in the absence of a written agreement, the client for whom the
video was shot probably has certain implied contractual rights to
use the video for its intended purpose.
Work Made For Hire Doctrine
In order for a party other than the videographer to be the “author”
of the copyright in a video, the video must be made as a “work
made for hire.” There are only two ways that this can be done:
1. The video is prepared by an employee within the scope of his
or her employment; or
2. The video is made as a “specially ordered or commissioned
work made for hire” pursuant to a prior signed written
agreement.
Transfer of Rights
• If a video does not meet the requirements of work made for hire (i.e., it
was not created in the scope of employment or as a specially
commissioned work), the videographer, as the author of the video, can
still transfer, assign, or license some or all of the rights to the video.
• But, the videographer still remains the “author” of the video, and
therefore has a right to terminate any such transfers between 35 and 40
years after the date of transfer (or publication). Clients do not want
their videographers to have such termination rights, and therefore
prefer that a video be created as a work made for hire for the client, so
that the client is the author of the video, not the videographer.
Copyright Infringement
A claim of copyright infringement consists of the following two
elements:
1. Ownership of the copyright in a work; and
2. Proof of copying or other violation of the owner’s exclusive
rights in the work.
Infringements can be direct, contributory, or vicarious. Vicarious
infringement only requires that the defendant received a financial
benefit and was able to supervise the infringing activity. It does not
require that the defendant had knowledge of the infringing activity.
Copies in Scripted v. Unscripted Programs
• Uses of decorative works such as posters, paintings, sculptures or
photographs in scripted television programs or movies may infringe the
copyright of such works if they are clearly recognizable and shown for
more than a de minimis amount of time. A producer will usually “clear”
such uses because they are creating the set and adding props.
• But, the risk of liability for this type of copying in news, reality, and
documentary programming is much lower. In this case, producers are
allowed to “take the world as they find it.” Thus, a teenager in a
documentary or news story does not have to change her t-shirt because
it has a copyrighted design on it. And a story about a nightclub does not
have to remove the music that was playing over their speaker system.
(So long as the producer did not select the t-shirt or music).
Drawings
• Producers of the film 12 Monkeys used an artist’s drawing as the
basis for creating a three-dimensional set. The Court enjoined the
film, holding that the artist would likely prevail on the merits of
his infringement action. Woods v. Universal Studios, 920 F.Supp 62
(SDNY 1996).
• An artist lost an infringement action on de minimis grounds where
one of his medical drawings appeared in a Nextel commercial for
10 seconds out of focus in the background and the other appeared
for 7 seconds in closeups that did not focus on the drawing but the
words around it. Gordon v. Nextel, 345 F3d 922 (6th Cir 2003).
Film and Television Clips
• A producer generally cannot use a film or television clip without
the permission of the copyright holder and actors unless such use
is protected by the fair use doctrine.
• The copyright owner of the movie The Story of G.I. Joe did not
prevail against news outlets for using film clips of Robert Mitchum
from the movie for their obituaries of him. The court held that the
public would be hindered by denying defendants’ fair use defense.
Video-Cinema Films v. Cable News Network, 98 CIV. 7128 (SDNY
11/28/2001)
Photographs
• Producers should be very cautious about using photographs without
written permission as their unauthorized use is heavily policed by
copyright owners. A fair use defenses for the unauthorized use of a
photograph is weaker because the entire photograph is used instead of
just a portion of it. A stronger fair use defense can be asserted when
using just a screen grab, film frame, or short film clip from a movie or
television show because it is not using the entire copyrighted work.
• A court held that the use of 10 photos in the movie Seven was so
fleeting, obscured and out of focus, that they were virtually
unidentifiable and thus not infringements. Sandoval v. New Line Cinema
Corp. 147 F.3d 215 (2d Cir. 1998).
Posters, Paintings, and Sculptures
• An artist prevailed on her infringement claim against a network that used her
decorative poster to dress the set of a sitcom. The poster appeared onscreen
for only 26 seconds.The court held that the producers had used the poster “for
precisely a central purpose for which it was created—to be decorative” and that
it was a use for which the artist could have obtained a licensing fee. Ringold v.
Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997)
• In a scene from The Devil’s Advocate, starring Al Pacino and Keanu Reeves,
Warner Brothers used a bas-relief sculpture containing human-like figures that
writhe and squirm. The sculpture, however, was copied without permission from
one that was hanging in the National Cathedral in Washington, DC. The artist
sued for copyright infringement and the case was settled out of court. Hart v.
Warner Bros. Inc. 1:97 cv 1956 (E.D. Va. 12/4/1997)
Written Material
• Using more than de minimis amount of someone’s writings without
permission could be an infringement.
• Short quotes from books and poems are generally protected by fair
use so long as they are not the “heart of the work.”
• Headlines and short quotes from newspaper and magazine articles
are generally protected by fair use.
• The full front page of a newspaper or a whole magazine cover is
protected by fair use provided it is timely and directly relevant to
the context of showing it. But using out-of-date covers may not
be protected by fair use.
Music
In general, all music that is used in a production must be licensed.
The only possible exceptions may be if: (i) the music is naturally
and incidentally occurring in the background of a news, reality or
documentary program; or (ii) the music is protected by fair use
(e.g., an educational documentary about the Beatles could probably
show clips of the Beatles performing their music, but probably could
not use Beatles music as a background soundtrack.)
Music infringements are aggressively policed by copyright owners.
Architecture
• 17 USC § 120 (a): The copyright in an architectural work that has been
constructed does not include the right to prevent the making, distributing, or
public display of pictures, paintings, photographs or other pictorial
representations of the work, if the building in which the work is embodied is
locate in or ordinarily visible from a public place.
• But, beware of using decorative, non-utilitarian gargoyles, hand carvings,
painted frescoes, graffiti, and other design elements which are physically or
conceptually separable from the building itself. An artist sued Warner Bros. for
showing his four artistic towers that were attached to the top of a building in
Batman Forever. The court, however, denied the infringement claim, holding
that the towers were “part of the architectural work.” Leicester v. Warner
Bros., 232 F.3d 1212 (9th Cir. 2000)
Clothing and Makeup
Clothing is considered a “useful item” and therefore its design is
not protected by copyright. However, certain artistic aspects of
clothing may be copyrightable if it “incorporates pictorial, graphic,
or sculptural features that can be identified separately from, and
are capable of existing independently of, the utilitarian aspects of
the article.” 17 USC § 101.
Makeup designs that are original and creative, such as those used
for the actors in the Broadway musical Cats, are subject to
copyright protection. Carell v. Shubert Org., Inc., 104 F.Supp.2nd
236 (SDNY 2000). But the usual application of makeup is generally
not copyrightable.
Remedies for Infringement
• Injunction – This can destroy the financial viability of a film.
• Monetary Damages - $750 to $30,000 per work infringed. Wilful
infirngements increases awards to $150,000. The prevailing party
is entitled to costs and attorney’s fees.
• Criminal Infringements – Willful infringement for profit are subject
to penalties of fines and imprisonment of up to three years,
depending on the number and value of copies made.
Public Domain
Works can be in the Public Domain for the following reasons:
1. They were created for the Public Domain.
e.g., open code software, most political posters, creative commons licenses.
2. Their copyright protection has expired.
As of 2014, all American works created prior to 1923 are in the Public Domain.
A common misconception is that anything on the internet is in the public
domain and can be used without permission. Not true!
Fair Use
17 USC § 107 - Limitations on exclusive rights: Fair use
[T]he fair use of a copyrighted work…for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The Four-Factor Test of Fair Use
The four-factor test of Fair Use requires one to weigh the four
different factors in determining whether a proposed usage is
protected by Fair Use. So the test, to the extent it requires a
“weighing of factors” is not a bright-line test on what is acceptable
or not, but a weighing test that requires an individual evaluation on
a case-by-case basis. However, a body of case law interpreting these
Fair Use factors has developed over the last 20 years, and
familiarity with these decisions can help a producer see what
factors are important for determining whether certain uses will be
protected by Fair Use (some helpful links to summaries of these
cases are listed at the end of this presentation).
First Factor – Transformative Use
The most important factor for determining fair use is the first factor
concerning the “purpose and character” of the use. Critical to this
determination is whether a usage is “transformative.” According to
the US Supreme Court, whether a the use of a work is
“transformative” depends on whether the new work merely
“supersedes” or “supplants” the original creation, or whether it
“instead adds something new, with a further purpose or different
character, altering the first with new expression, meaning, or
message; it asks, in other words, whether and to what extent the
new work is ‘transformative.’ Campbell, 510 U.S. at 579 (quoting
Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111)
First Factor – Commercial or Nonprofit
While the first factor of Fair Use considers whether a use is
commercial or for nonprofit purposes, a number of cases hold that
this consideration is not as important as whether the work is
transformative. Thus, Fair Use will be found even though a
defendant benefits commercially from the unlicensed use of the
copyrighted works. See, e.g., Blanch, 467 F.3d at 253; Bill Graham
Archives, 448 F.3d at 612. See also Castle Rock Entm't, Inc. v. Carol
Publ'g Grp., Inc., 150 F.3d 132, 142 (2d Cir. 1998) (observing that
Second Circuit does "not give much weight to the fact that the
secondary use was for commercial gain").
Second Factor – Nature of Copyrighted Work
The second factor of the Fair Use test is the “nature of the
copyrighted work.” For this factor, the courts generally consider
whether the work is published or unpublished or a work of fiction or
non-fiction. Works that are published and nonfictional weigh in
favor of Fair Use under the second factor. See, e.g., Arica Inst.,
Inc. v. Palmer, 970 F.2d 1067, 1078 (2d Cir. 1992) ("Whether or not a
work is published is critical to its nature under factor two because
the scope of fair use is narrower with respect to unpublished
works.")
Third & Fourth Factors of Fair Use
The third factor of Fair Use is "the amount and substantiality of the portion used
in relation to the copyrighted work as a whole." 17 U.S.C. § 107(3). Using an
entire photograph is more problematic than using a film clip that comes from an
entire movie.
The fourth factor is "the effect of the use upon the potential market for or value
of the copyrighted work." 17 U.S.C. § 107(4). A lot of the cases analyzing the
fourth factor under Fair Use are influenced by whether or not a use is competing
directly with the market for the original work. For example, the use of a film clip
to illustrate some educational point would probably not be taking away business
from the market for an entire film. On the other hand, using photos, music, or
decorative art that is usually licensed by authorized owners and agencies would
be directly impacting their market for these works.
Is it Fair Use or Not?
Stanford University’s website has an excellent summary of cases
where Fair Use has been upheld or denied (See Helpful Links at end
of presentation)
On the next two slides are examples from the Stanford website on
how principles of fair use have been applied to either uphold or
deny the use of film and video clips.
Fair Use Upheld – Film Clips
Fair Use Upheld. The producers of a movie biography of Muhammad Ali used 41
seconds from a boxing match film in their biography. Important factors: a small
portion of film was taken and the purpose was informational. (Monster
Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F.Supp. 490 (SDNY
1996).
Fair Use Upheld. A seven-second clip from the Ed Sullivan TV show was used in a
staged musical history (The Jersey Boys) based on the career of the musical
group, the Four Seasons. An important factor was that the use was
transformative: “Being selected by Ed Sullivan to perform on his show was
evidence of the band’s enduring prominence in American music ....By using the
film clip as a biographical anchor, [the defendant] put the clip to its own
transformative ends.” Further, the use caused no financial harm to the copyright
owners of the show. SOFA Entertainment, Inc. v. Dodger Productions, Inc., No.
2:08-cv-02616 (9th Cir. Mar. 11, 2013).
Fair Use Denied – Film Clips
Fair Use Denied. A television news program copied one minute and 15
seconds from a 72-minute Charlie Chaplin film and used it in a news report
about Chaplin’s death. Important factors: The court felt that the portions
taken were substantial and part of the “heart” of the film. (Roy Export
Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095,
1100 (2d Cir. 1982).
Fair Use Denied. A television station’s news broadcast used 30 seconds
from a four-minute copyrighted videotape of the 1992 Los Angeles beating
of Reginald Denny. Important factors: The use was commercial, took the
heart of the work, and affected the copyright owner’s ability to market
the video. (Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119
(9th Cir. 1997).
Other Legal Issues
• There are other important legal issues for producers to consider
that do not involve copyright law. They include the following:
•
•
•
•
•
•
Defamation (libel and slander)
Right of Publicity
Invasion of Privacy
False Light
News-Gathering Torts
Production Safety
Further Reading
These are all excellent guides. The first two come with CD-ROMs containing a library of legal forms for
producers. You can find them online by Googling their titles.
Helpful Links
US Copyright Office: www.copyright.gov
Stanford University’s Summary of Fair Use Cases: www.fairuse.stanford.edu/overview/fair-use/cases/
Cornell University’s Chart on Copyright Durations: www.copyright.cornell.edu/resources/publicdomain.cfm
Documentary Filmmakers' Statement of Best Practices in Fair Use: www.cmsimpact.org/fairuse/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-use
588 Free Film Contracts and Forms: www.filmmakeriq.com/2009/04/588-free-film-contracts-and-forms/
Film Anchor Free Film Contracts and Forms: www.filmanchor.com/contracts-forms
Mark Litwak’s Entertainment Law Resources: www.marklitwak.com
Legal Ease, a Blog on Production Law: www.filmindependent.org/category/legal-ease/#.VAEH5Okg_3g
Film Lawsuits in the News: www.indieclear.com/film_lawsuits.htm
One-Page Guide to Copyright Law: www.chart.copyrightdata.com/OnePageGuide.html
Conclusion
This has been a presentation of David M. Slater.
This presentation will be available at: www.davidmslater.com
Inquiries or comments may be directed to Mr. Slater at
mail@davidmslater.com. Thank you.
© 2014 David M. Slater. All rights reserved.