Since we just
recently were on the topic of right vs. left I thought I’d educate myself a bit
on copyright law. My interest in the topic came up during the recent Digital Hollywood seminars here in New
York on a panel about the art of the deal.
Lawyers on the panel used a lot of verbiage that I had certainly heard
of, but lets face it, had little educated knowledge about. Did you know what a “sunset provision” was?
No, not a deal involving Sunset Boulevard, nor Before nor After Sunset.
Here a quick overview
of some of the concpets that came up during this and other pannels: Copyright,
Sunset Provision, Creative Commons Licenses, Copyleft, Public Domain, Fair Use,
and FRAPA and what they mean to me as a content producer and filmmaker. Texts
in italics are copied if not noted otherwise from Wikipedia or other sources
(noted).
To bring it to a
point: this is really a discussion to be
had about the space between all our first Amendent rights (as US citizens) and our
rights as content creators. With the event of the internet in general and social
media in particular the landscape has shifted into a new dimension. Legal concepts and structures like Fair Use,
Creative Commons Licenses and FRAPA give us protection, rights and options to
negotiate that space between our right of freedom of speech and our right to
protect our work as content producers.
Copyright
Copyright
is a legal concept, enacted by most governments, giving the creator of an
original work exclusive rights to it, usually for a limited
time. Generally, it is "the right to copy", but also gives the
copyright holder the right to be credited for the work, to determine who may
adapt the work to other forms, who may perform the work, who may financially
benefit from it, and other related rights. It is a form of intellectual
property (like the patent, the trademark, and the trade secret) applicable to any expressible
form of an idea or information that is substantive and discrete.
Sunset Provision
In public policy, a sunset
provision is a measure within a statute, regulation or other
law that provides that the law shall cease to have effect after a specific
date, unless further legislative action is taken to extend the law. Most laws
do not have sunset clauses and therefore remain in force indefinitely.
It took me a good digging to find out how on earth that pertained to the
entertainment industry in general and the film industry in particular. The most common explanations had to do with
government agencies being ‘sunseted’ so they would have to prof their viability
for continued existence and hence funding after say, 10 years. In entertainment it’s used for agreements
with agents or managers. It caps their
right to a client’s assets after a set time frame.
Creative Commons
I stumbled onto “Creative Commons”, which to
my surprise was not a concpet or law, but a company. Creative Commons (CC)
is a non-profit organization headquartered in Mountain View, California, devoted
to expanding the range of creative works available for others to build upon
legally and to share. The organization has
released several copyright-licenses known as Creative Commons
licenses free of charge to the public.
These licenses allow
creators to communicate which rights they reserve, and which rights they waive
for the benefit of recipients or other creators. An easy to understand one-page
explanation of rights, with associated visual symbols, explains the specifics
of each Creative Commons license. Creative
Commons licenses do not replace copyright, but are based upon it. They replace
individual negotiations for specific rights between copyright owner (licensor)
and licensee.
There are four common icons
that regulate these Creative Commons (CC) licensees on top of copyright:
Mixing and matching these conditions produces sixteen
possible combinations, of which eleven are valid Creative Commons licenses and
five are not. Of the five invalid combinations, four include both the
"nd" and "sa" clauses, which are mutually exclusive; and
one includes none of the clauses. Of the eleven valid combinations, the five
that lack the "by" clause have been retired because 98% of licensors
requested attribution. This leaves six regularly used licenses.
For example, the Creative Commons Attribution (by) license allows one to share and remix (create derivative works), even for commercial use, so long as attribution is given. (I’m still copying from Wikipedia and now also referencing www.creativecommons.org).
Copyleft
I was intrigued
by the term Copyleft and needed more detail to understand it. Copyleft is a play on
the word copyright to describe
the practice of using copyright law to offer the right to distribute copies and
modified versions of a work and requiring that the same rights be preserved in
modified versions of the work. In other words, copyleft is a general method for
making a program (or other work) free (libre),
and requiring all modified and extended versions of the program to be free as
well. This free does not necessarily mean free of cost (gratis),
but free as in freely available to be modified. In general, copyright law is
used by an author to prohibit others from reproducing, adapting, or
distributing copies of the author's work. In contrast, under copyleft, an
author may give every person who receives a copy of a work permission to
reproduce, adapt or distribute it and require that any resulting copies or
adaptations are also bound by the same licensing agreement. I find the distinction of free and gratis interesting.
Free to copy but not necessarily ‘for free’…
FRAPA
Another term used in the discussion at Digital Hollywood was FRAPA, which stands
for the Format Recognition and Protection Association. It protects a format
rather than content. From their website:
FRAPA
aims to ensure that television formats are respected by the industry and
protected by law as intellectual property.
This comes to play in the reality TV world where the show format was not
just an ‘idea’ but a to be protected commodity as producers around the world
jumped on the “Survivor” or “Big Brother” bandwagon and a fledgling industry
grew into a multi-billion dollar entertainment business and into major brands.
Public Domain
On we go to. Works
in the public domain are
those whose intellectual property rights have expired, been forfeited, or are
inapplicable. Examples include the works of Shakespeare and Beethoven, The King
James Bible. The term is not normally
applied to situations when the creator of a work retains residual rights, in
which case use of the work is referred to as "under license" or with
permission.
In informal
usage, the public domain consists of works that are publicly available; while
according to the formal definition it consists of works that are unavailable
for private ownership or are available for public use. As rights are country-based and vary, a work
may be subject to rights in one country and not in another. Some rights depend
on registrations with a country-by-country basis, and the absence of
registration in a particular country, if required, implies public domain status
in that country.
Fair Use
A few years ago I
attended a seminar about fair
use in documentaries, held by my insurance broker C&S International and Hiscox
USA. In
United States copyright law, fair use is a doctrine that permits limited use of
copyrighted material without acquiring permission from the rights holders.
Examples of fair use include commentary, search engines, criticism, news
reporting, research, teaching, library archiving and scholarship. It provides
for the legal, unlicensed citation or incorporation of copyrighted material in
another author's work under a four-factor balancing test.
So basically a filmmaker can use footage from another film, if they a) add
something to it (i.e. a voice over), b) do not undermine its value and c) do not
use more than needed to make their point. I also did some digging and came up
with an article in The Independent
Magazine from 2009: “Beg, Borrow, or Steal?
Deciphering Fair Use for Filmmakers”. Here a more expanded upon discussion what
constitutes fair use:
“Employing
copyrighted material as object of social, political or cultural critique.” Documentary
makers may need to borrow text, image, or sound for the purpose of critical
analysis or critique, much like a writer may borrow a few lines of text for the
purpose of review. This includes direct commentary and parody, and it doesn’t
matter if the resulting commentary is negative or positive as long as it's
being used to make a point.
“Quoting
copyrighted works of popular culture to illustrate an argument or point.” The copyrighted
work illustrates a point the filmmaker is trying to make, similar to how a
journalist would incorporate quotes to illustrate a point. The filmmaker may
not quote the material for its original purpose but for a new one and that work
must be credited.
“Capturing copyrighted
media content in the process of filming something else.” The filmmaker
unintentionally catches incidental sounds or images, such as music playing on
the radio in the background or a family singing the copyrighted “Happy
Birthday” song. The copyrighted music can’t be played after the segment has
ended.
“Using
copyrighted material in a historical sequence.” Material can be
used to tell a historical narrative if the filmmaker can prove the material is
the best or only way to make the point. S/he must also prove that the project
wasn’t designed around the original material and the copyright owner must be
properly credited.
In summary lawyer-up…
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