What do video professionals need to know about copyright and protecting their works? To find out, we talked with Peter Harvey and Naomi Jane Gray of Harvey Siskind LLP, a leading firm that specializes in clearing, registering and enforcing intellectual property rights.
What is copyright and why is it important for video professionals?
Copyright is legal right granted by a country for protection for a limited period of time of one’s original works of authorship or creations of the mind. Among other reasons, copyright is important to video professionals because it allows attribution and compensation for one’s intellectual effort, as well as incentive for to create new works.
Once a work is fixed in a tangible medium of expression, that is to say once a work is created in a pixel, photo, or video, it is immediately protected by copyright. Video professionals’ work is automatically protected under copyright. However it is a good idea for video professionals to register their work as it provides additional protection should their work be infringed.
Infringement is when a copyrighted work is reproduced, distributed, performed or displayed without permission. Some infringements may be innocent or accidental. In such cases, the copyright owner can request the infringer to desist. However many instances of infringement are deliberate and can harm or deprive a copyright owner.
Video professionals should take the basic step to register their works at U.S. Copyright Office. Online registration is available for a basic fee of $35 for a single work by a single copyright claimant, $55 for a set of works. Should the infringement need to be litigated, the registration ensures that the copyright owner is eligible to recover statutory damages and attorney fees. In any event, if one experiences an infringement and wants to sue, one will need to register.
What do video professionals and content creators need to know to protect their content when it’s being distributed in another country or if they make content for a specific country?
Copyright rules differ by country. When a video is played in a particular country, it is subject to the local laws. In order to facilitate content distribution, more than 200 countries signed the Berne Convention beginning 1886. It eliminates formalities and ensures equal treatment of content by signatory nations. It offers content creators a minimum standard of protection. However should video professional have issues with their content abroad, they will likely need to consult foreign counsel.
What do video professionals need to know about adding music to their self-promotional videos? Are there issues if videos are cut with music that is is not licensed for that purpose?
While video comes under a single copyright, music is afforded two copyrights, one for the composition and another for the sound recording. If music is commercially released and is under copyright, it is an infringement to reproduce, distribute, or perform it without a license. There may be instances where pieces of music can be used under “fair use”, an exception to copyright which allows works to be used for news, commentary, parody, education, and search engines. However proving fair use for a promotional video can be difficult.
Video professionals can avail themselves of licensed music, and there are licensing agencies that can assist. Some music is also available for free under Creative Commons, works registered such that they can be used by anyone. In any event, adding unlicensed music to a video is a dangerous practice. Video professionals are wise to avoid doing it.
How is copyright treated in different media, for example, feature films, television, over the top (OTT) video etc?
When a work is licensed, there will be a contract for different rights in different media. The right to distribute content is negotiated depending on the medium. Copyright is divisible. A content owner can license a work for television, or for television in a particular market.
There is no doubt that putting works on the Internet can theoretically increase its distribution, but the rewards to the owner may differ from licensing the work to other media. Putting works on the Internet also increases the chances they may be used inappropriately.
Moreover a work created today may be distributed via a new technology in the future. Therefore it’s important that video professionals’ contracts have language that protects their content in future media and that all rights not specifically granted are reserved.
What can a content creator do if his content is used in an inappropriate or unapproved manner?
There are a variety of remedies for the rights owner to resolve an infringement of his content, and solutions will depend on the situation. The Digital Millennium Copyright Act (DMCA) allows a copyright owner to send a takedown notice when his work is reproduced or displayed on the Internet without permission. This Act also allows a counter notice by the user. Upon receipt of the counter notice, the Internet Service Provider will restore access to the content within 10 days unless notified by the copyright owner that suit has been filed. A copyright owner can also send a cease and desist letter to the infringer. A third level of redress is a lawsuit.
What’s the best way for a video professional to protect himself and avoid getting into problems?
Video professionals need to read contracts carefully. They should also have counsel review their contracts. It is always cheaper to spend the money upfront to review a contract than to take action after an infringement has happened. The other essential precaution for video professionals is to register their works with the United States Copyright Office (and in other countries where appropriate). As noted above, in the U.S. this is a cheap and speedy way to gain eligibility for two real benefits – namely, an award of attorneys’ fees and statutory damages – in the event the work is infringed.
Any other copyright or legal questions you’re curious about? Let us know in the comments section.
Harvey Siskind LLP is located at Four Embarcadero Center, 39th Floor, San Francisco, CA 94111 | T: 415-354-0100 |http://www.harveysiskind.com/