The Public Domain, Fair Use, and Other Bedtime Stories

We’ve all been there before: We really need a particular source image to realize an idea. And we don’t have a copy of one ourselves. But look – there’s one on a web site! Or a client gives us one that they picked up “somewhere.” Or there’s a book lying around the office that we could scan. And if anyone involved feels a twinge of guilt, someone else tries to excuse it as “public domain” or “fair use.”

Sorry; these “solutions” are illegal, and unfortunately most claims of public domain and fair use tend to be based more on wishful thinking than on fact. If someone else created something, and exercised just the slightest smidge of creativity in doing so, then they own the rights to it, as well as the rights to every variation of it (commonly known as a “derivative work”) – and they have to explicitly release the rights for you to have a shot at it. Fair use does exist, but it’s pretty narrow and gray; if you’re not quoting small pieces for a scholarly review, it probably doesn’t apply.

But we’re not here just to slap your wrists; we’re here to give you some viable solutions. To start, there’s a wealth of royalty free stock footage and imagery out there for sale designed for this very purpose. We have cabinets full of the stuff, and consider it a good investment – it’s another solution we provide our clients. On the high end, we particularly like footage from Artbeats (register on their web site and get a free clip; subscribe to their newsletter and get an additional free clip every month). On the low end, iStock and other user-generated-content sites have been a big boon; for example, the image we used at the top of this entry only cost a dollar and change on iStock. (Full disclosure: we personally sell video clips through both. Hey – it’s a way to make money back on content you generate…) For music, there’s hiring local talent to record something original, or using stock music (not iTunes!) – many uses such as demo reels or trade show music typically cost under $100. We like SmartSound and VideoHelper in these areas.

No budget? And no opportunity to shoot it yourself? Fortunately, there is a large amount of source material out there in the public domain which you can use for free. For example, if you’re a US citizen, anything your tax dollars funded (such as the military or space programs) is yours to use.

However, a lot of people misinterpret the public domain or the concept of “fair use” in ways that might lead you to believe they still believe in the tooth fairy as well. Fortunately, there’s a really great resource available on the subject: The Public Domain from Nolo Press. Not only does it give you suggestions on where to find public domain sources, it explains what you can and cannot use in very clear, plain-English terms (with lots of real-world legal cases to back it up). We consider it a necessary part of any media person’s bookshelf.

And as for clients: Many are getting far stricter about where sources come from, expecting you to be able to document beyond doubt that you can use it in works you’re creating for them. As they expand into new media, they don’t want to see any restrictions on the license agreements; you may need to negotiate special releases for stock footage you plan to use. And as for clients on the other side of the fence: We make it part of our contract that they take responsibility for securing the rights to any source material they supply to us, to keep ourselves out of the legal blame game.

The bottom line is: Treat the content of others the way you would want your own content to be treated. Then we can all stay employed.

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