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 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.
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.
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:
Licensees may copy, distribute, display and perform the work in question and make derivative works based on it only if they give the author or licensor the credits as specified here (copied from Wikipedia):
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).
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’…
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.
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.
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…