Copyright & Related Issues

COPYRIGHT & RELATED ISSUES
FOR MULTIMEDIA AND ONLINE ENTREPRENEURS

Lecture Notes for UCLA Multimedia Law Classes
By Harris Tulchin

I. COPYRIGHT BASICS - WHAT IS A COPYRIGHT?
II.TRADEMARKS
III.WHAT COPYRIGHT DOES
IV.WORKS FOR HIRE
V.COPYRIGHT DURATION
VI.HOW TO REGISTER A WORK
VII. HYPOTHETICAL - CD ROM PROJECT
VIII. SCANNING OBSCURE MAGAZINES
IX. PHOTOS OF FAMOUS PAINTINGS, OR OTHER WORKS OF ART
X. IMAGES FROM FOREIGN PUBLICATIONS
XI. PHOTOS OF CELEBRITIES
XII. HOW DO YOU FIND OUT WHO OWNS THE RIGHTS TO AN IMAGE ?
XIII.WHAT CAN ARTISTS, OR PUBLISHERS DO TO PROTECT THEIR WORK?
XIV.EFFORTS UNDER WAY TO UPDATE COPYRIGHT LAWS

I. COPYRIGHT BASICS - WHAT IS A COPYRIGHT?

A. A copyright is a protection under Title 17 of the U.S. Code offered to the authors of literary, dramatic, musical, artistic, and other intellectual properties, whether published, or unpublished.
B. A copyright protects the particular manner in which a work's contents, and ideas are expressed.
C. You cannot copyright ideas, facts, titles, short phrases, slogans, or names, among other things.

II.TRADEMARKS

A. Trademark, and unfair competition laws allow you to protect words, names, short phrases, symbols, and other devices that identify, and distinguish goods and services. The Microsoft, Sega, and Ninetendo logos, for example, are protected by trademark, not copyright.

III.WHAT COPYRIGHT DOES

A. The copyright gives the author limited, exclusive rights to:
1. Reproduce the work;
2. Create derivative works based on the original work;
3. Distribute copies of the work;
4. To perform the work, or
5. To display the work in public.

IV.WORKS FOR HIRE

A. The author usually owns the copyright automatically, unless he, or she was paid by a third party and prepared the work as a work for hire, in which case, the employer owns the copyright.

1. The authors of a collaborative work own its copyright jointly.

B. Fair Use: The fair use doctrine allows for copying without permission for such purposes as criticism, commentary, news reporting, teaching, scholarship, and research.

1. Four main factors for determining whether Fair Use exception is available:

A. The purpose of the use (whether the copying is intended for commercial, or non-profit purposes).

B. The nature of the original (whether it was published, or unpublished, is one consideration here).

C. The amount and importance of the portion used in relation to the original work as a whole.

D. The impact of the use on the original work's commercial value.

V.COPYRIGHT DURATION

A. Copyrights are not eternal. When a copyright expires, the work falls into the public domain, and anyone is free to use it without permission.
B. Any work created on, or after January 1, 1978, is automatically protected by copyright from the moment it was created.
1. For these works, the copyright expires 50 years after the author's death.
2. Works created as work for hire, and as pseudonymous and anonymous works are protected for 75 years from date of publication, or 100 years from the date of their creation, whichever is shorter.

3. Works created before, but not published, or registered until after 1978, receive the same protection as works created on, or after that date.
4. Works created and published, and registered before 1978, and were still under copyright protection on that date, are now copyrighted for a total of 75 years from the date they were created, published, or registered.
5. Works that fall under the old copyright law prior to January 1, 1978, were entitled to an initial 28 years of protection, and an additional renewal right for an additional 28 years of protection. Some works fell into the public domain because they were not renewed for a second 28 year term.

VI.HOW TO REGISTER A WORK

A. To register a work you must fill out an application form from the U.S. Copyright Office, pay the $20.00 application fee, and send one, or more copies of the work to the copyright office with the form.
B. You can get these forms from the Copyright Office Information and Publication section LM-455 Library of Congress, Washington, D.C. 20559, or call 202/707-3000.

VII. HYPOTHETICAL - CD ROM PROJECT

A. You have an assignment to create a CD-ROM that is due to be delivered, and your deadline is imminent. After working for hours trying to finalize it, you realize your product needs one last final touch, an image of the thick white clouds in a blue sky passing over a mountain. You pick up a current magazine; find a beautiful photo of exactly what you need; scan the photo (or a portion of the photo) into an image editing program, and put a portion of the clouds, sky and mountain into your drawing program, and use it in your CD-ROM product.
B. It is an easy solution, your image looks great, you have finished the assignment on the product on schedule. There is only one problem. You have just committed copyright infringement.
1. Under current copyright laws your appropriation of the image is a derivative use of the original photograph. Unless you receive permission from the copyright owner, you have violated the owner's copyright.
2. There may be several mitigating factors, or shades of grey to consider. For example:
a. In the original magazine photo, how distinctive, or representative of the originator's work are the sky, clouds and mountain?
b. How important are the sky, clouds and mountain to the original image, or are they simply part of the background, or are they the focal point?
c. How much of the image did you use for your CD-ROM product?

d. Did you change the color, or otherwise alter the image?
e. How likely is it that your use of the image has damaged the photographer's ability to sell his, or her original work again?
C. Today's Technology: With today's electronic technology, the boundaries between right and wrong, between inspiration and infringement, are becoming increasingly blurred.
D. Sorting Through: To sort through many of the grey areas of copyright law, I am going to deal with some of the most frequently asked questions about graphics, publishing, copyright, computers, and protection.
E. Copyright Law is Technical:It is important to remember that copyright law is extremely technical, and its application can vary greatly from one situation to another.
F. Play it Safe: It is always better to play safe, and get permission -- paying a licensing fee is almost always cheaper than hiring an attorney.
G. The Example: In the example I just described -- how likely is it that the artist who scanned that portion of clouds, sky and mountain would be challenged by the copyright owner?
1. In this particular case, it may be unlikely, particularly if you borrowed a small portion of the image. But as we will see later -- it is an infringement and it can cost you.
2. Scanning: When you scan the photo, you are indeed infringing on the copyright of that image.
3. Lifting, Adapting: When you lift a portion of the photo, you are adapting, or modifying that image without permission, which is another act of infringement -- the copyright owner has the sole right to adapt, or modify his work.
4. Copying: Once you have incorporated the image, or whatever you've used into a new image, every time a copy of that image is made, the original owner's copyright is infringed against.
5. Minimal Use; Substantial Similarity: If a portion of the photo you appropriated is minimal, and insignificant to the original image as a whole, then perhaps what you've done doesn't really rise to the level of infringement, which requires substantial similarity.
6. Limited Specific Guidelines: Current copyright law does not offer very specific guidelines in guiding how much of a work can be copied without infringing.
7. Music Industry; Sampling: Recent decisions in the music industry may offer some guidelines.
a. Gilbert O'Sullivan vs. Biz Markie: In a 1991 lawsuit, singer Gilbert O'Sullivan sued rap performer Biz Markie, and 8 other defendants for sampling, or including without permission, a small portion of O'Sullivan's "Alone Again Naturally," Markie's song, "Alone Again."
b. The rap song borrowed just 3 words, and 8 bars of the music from O'Sullivan's hit, but what it borrowed, particularly the words, "Alone again, naturally" was an important part of the original tune.

c. Markie's attorney defended this action on the grounds that stealing bits and pieces from songs was common in the music industry, but the court ruled against the rapper.

d. Had Markie used the less recognized, or important parts of O'Sullivan's song, it is possible that there would have been no judgment against Markie.

8. Fair Use: The fair use privilege allows for a limited amount of copying without permission for the purposes of commentary, news reporting, educational, and other uses.
a. Fair Use -- sometimes interpreted too broadly: Many copyright infringements occur when fair use is interpreted too broadly.
b. When borrowing portions of clouds, sky and mountain from someone else's work, the artist might assume that the small amount being taken constitutes fair use.
c. Strict Analysis: No Fair Use: On the other hand, strict legal analysis would say that since there is no degree of commentary, or criticism involved, no news reporting, teaching, scholarship, or research, it is simply not a fair use.
d. Slight taking; No commercial injury: Some legal experts would say that if the taking is relatively slight, and insignificant to the original work, and it doesn't hurt the commercial value of the original, then many courts would allow the use.
e. Artists are vigilant protectors of their rights: On the other hand, many artists, publishers, and advertising agencies mistakenly assume that using a fairly genetic photograph or illustration in its entirety as a small portion of a new image, is safe.
1. This is not necessarily the case. Recently, a veteran photographer, a writer who works for major national magazines, discovered a full-page ad in a computer magazine, showing business executives watching an audio-visual presentation.
2. On one of the 3 AV projection screens featured in the ad, there was a small photograph of fiber optic wires that the photographer recognized as his own work.
3. The photographer's attorney contacted the manufacturer and the ad agency who created the ad, and they admitted that they had not obtained permission, assuming that it was not necessary for the fiber optic image.
4. They admitted that the ad had run numerous times in various magazines. The photographer submitted a bill for numerous separate uses of the photograph, and the bill was paid.
5. Can't use copyrighted image without permission: The point of this is simple. Technically, under the copyright law, you cannot use someone else's copyrighting image without their permission, unless you would be willing to risk a lawsuit.

VIII. SCANNING OBSCURE MAGAZINES: If a CD-ROM producer scans photos from obscure magazines of the 1930's and '40's, colorizes, or otherwise alters them, and uses them as central images for a CD-ROM product, is he, or she guilty of infringement?

A. Expired Copyrights: Not if the copyrights of those magazines, or any of its contents have expired due to age, or lack of proper copyright notice.

1. Many of those magazines, and their contents have fallen into the public domain.

2. Old law: Under the old copyright law, a published work's copyright lasted for 28 years, and could be renewed for an additional 28 years, thereby protecting the works for no more than 56 years.

3. Copyright law was revised in 1976, and the revisions went into effect in 1978.

4. Term: Under the revised law, the copyright of any published work still in its first 28-year term of protection as of January 1, 1978 (meaning the work would have been published in 1950, or later) could be renewed for an additional 47 years -- giving a work a total of 75 years of protection.

5. Second Term: Any published work in its second 28-year term of protection as of January 1, 1978 (meaning it had been published between 1922 and 1950), received an automatic copyright renewal for a total of 75 years.

6.Works published after 1922: So any work published in 1922 or thereafter could still be protected -- if the copyright owners renewed the original copyright after its first term expired.

7. Copyright Notice: Also, works published before March 1, 1989, were required to carry a copyright notice in order to be protected.

8. No Notice; No Protection: Notice requirements were particularly stringent prior to 1978. Therefore, if the 1930's and 1940's magazines did not carry a proper copyright notice, then they have lost their right to protection.

9. Likelihood of Recognition: Depending on how an image from an old magazine is used, the likelihood that someone would recognize the original work, and contest its reuse today is probably low.

a. Someone would have to see the new image, and remember the magazine it originally appeared in;

b. Then, there's the question of damages -- what are those original images really worth now?

c. The answer is, probably not that much.

d. Even if someone does challenge the use, unless it is a recognizable, keystone image you've used, the odds are you would end up paying only a permissions fee.

e. Nevertheless, it is a good idea to make that determination, and pay the fee if the owner can be found.

IX.DO YOU NEED PERMISSION TO PUBLISH PHOTOS OF FAMOUS PAINTINGS, OR OTHER WORKS OF ART, EVEN IF BECAUSE OF THEIR AGE, THEY ARE IN THE PUBLIC DOMAIN?

A. Yes, although it's not because of copyright.

B. Museums; Private Property: The world's great works of art are generally owned by museums or collectors, and under ordinary private-property laws, everyone has the right to restrict, or grant access to their possessions.

C. Permission to Photograph: If you live in New York, and you'd like to snap a photo of one of Monet's water lily paintings for your presentation, you must ask the Museum of Modern Art, which owns the paintings, for permission to bring in your camera to take the picture.

D. Pay Licensing Fee from Photo Agency: If the museum doesn't agree, which they generally don't, you'd need to obtain a photo, or transparency of the water lilies from the museum, or from a stock-photo agency, and pay a licensing fee for its use.

X. IS IT OKAY TO COPY IMAGES FROM FOREIGN PUBLICATIONS WITHOUT GETTING PERMISSION?

A. Definitely not.

B. The United States is a member of several international copyright conventions, such as the Berne Convention, and the Universal Copyright Convention.

C. Under these treaties, American copyright laws protect, within the United States, publications and works produced in any foreign countries that are members of these conventions.

D. Most industrialized countries are members.

E. This means that a copy of Britain's Financial Times enjoys the same copyright protections in the United States as the American Wall Street Journal -- conversely, the Wall Street Journal distributed in Britain is also protected in Britain by British copyright laws.

XI. CAN A CD-ROM PUBLISHER USE PHOTOS OF CELEBRITIES IN ITS MULTIMEDIA PRODUCT WITHOUT PERMISSION?

A. It depends on the use.

1. A news or commentary related project -- perhaps Time magazine on CD-ROM would probably not require a permission under the First Amendment and/or Fair Use exemptions.

B. There are two important considerations here.

1. Right of Publicity: One is a celebrity's right of publicity -- the right to control the use of one's name or likeness (or any person's right of privacy);

2. Copyright: The other is the copyright protection of a particular photo in which a celebrity or other individual appears.

C. Public Figures are not Public Property: Many people assume that public figures are public property, but this is not the case.

1. Advertising; Commercial Use - not okay: You absolutely cannot use anyone's image, celebrity or not, for any advertisement or endorsement without permission.

D. Use of Exact Image: The image doesn't even have to be a celebrity's exact likeness to be considered an infringement.
1. Vanna White; Samsung Robot: Last January, Vanna White was awarded $403,000 in damages from Samsung Electronics, because Samsung ran an ad featuring a blonde robot in a game show setting that resembled "Wheel of Fortune".
E. Dead Celebrities: In addition, the celebrity doesn't even have to be alive. The image of Elvis Presley is one of the most carefully protected, and Tennessee, where Presley lived, has the most far-reaching rights of privacy, and publicity laws in the country.
F. For editorial purposes: you are less likely to get in trouble when using a celebrity's image for editorial purposes under the First Amendment, as with newsletters, newspapers, or magazines. As long as the image is used to appropriately illustrate news reporting or some form of commentary or criticism, it is most likely protected fair use.
G. Photo of Celebrity: Separate Copyright: While a celebrity is a public figure, it is important to remember that a particular photo of that celebrity is subject to the same copyright protections as any other original work, and must be licensed.

XII. HOW DO YOU FIND OUT WHO OWNS THE RIGHTS TO AN IMAGE IF IT IS NOT APPARENT?

A. There are several companies that will search for the copyright owner of a particular work for a fee.
1. Thomson & Thomson in Washington, D.C.;
2. BZ/Rights & Permissions in New York;
3. Dennis Angel, an attorney in New York;
4. Some of these services simply do searches for a fee, and other organizations like BZ/Rights, and Harris Tulchin & Associates at 310.914.7979 will help you negotiate usage licensing fees.
5. You can also ask the U.S. Copyright Office in Washington, D.C. to perform a search, but it takes quite some time to get the results.

XIII.WHAT CAN ARTISTS, OR PUBLISHERS DO TO PROTECT THEIR WORK FROM COPYRIGHT INFRINGEMENT BY OTHERS?

A. Copyright on Creation: The moment you create an image, it is copyrighted -- you don't even have to register the work with the Copyright Office.

B. Registration Protections: Under current law, your work must be registered before you can get special protections and file a lawsuit.

1. If you've registered, and you prevail, you can collect either statutory, or actual damages, as well as attorneys' fees, and obtain an injunction against any further use of the infringing work.

2. If you did not register your work until after the infringement, you can only sue for actual damages, and an injunction.

3. Actual damages are the amount of monetary losses that the victim suffered as a result of the infringement.

4. Statutory damages can be fixed by the court in amounts that it considers to be fair compensation if the actual proved losses are small, or difficult to prove.

C. Professional Organizations; New Bill: Professional organizations such as the American Society of Media Photographers (ASMP) and the Graphic Artists Guild (GAG) are currently pushing a bill in Congress that would enable artists to file for copyright infringement, and collect statutory damages and attorneys' fees even if the work is not registered with the Copyright Office.

D. Preventive Measures: It is difficult to prevent digital designs from being stolen or misappropriated -- but not impossible.
1. Copyright Notice: Whenever possible, try to ensure that a copyright notice accompanies your image.
a. While the notice is no longer required in order to sue for infringement, at the minimum it keeps the violator from claiming that the infringement was done unknowingly.

2. Watermark; translucent Copyright Notice: Another option is to place a watermark, or translucent copyright notice somewhere within the image.
3. At least one online photography service is giving this solution a try.
4. Picture Network International (PNI) in Arlington, Virginia, which launched a stock-photography service called Seymour in mid-1994, has embedded multiple copyright-notice watermarks in each of its online images.
5. The watermarks are too small for most people to detect at low resolutions, but are noticeable when the image is printed as a high-resolution CMYK file.
6. Editing Too Costly: Although someone could edit out the notice from the image, they'd be defacing the image, and the time they'd spend in editing out the image could represent more money than it would cost to license the image in the first place.

XIV.ARE THERE ANY EFFORTS UNDER WAY TO UPDATE COPYRIGHT LAWS AS A RESULT OF THE EXPLOSIVE GROWTH IN PERSONAL COMPUTER USE?

A. Growing Concern: There is growing concern among artists and photographers that they are losing the ability to protect their copyrights as a result of scanners, electronic bulletin boards, and the forthcoming information superhighway.

B. Music Industry - Inspiration: Many are looking to the music industry for inspiration.

C. DAT Royalty: Several years ago, the industry protested the introduction of digital audiotape (DAT) players in the United States, fearing that the high-quality recording devices would cost musicians and studios millions in lost royalties.

D. In July 1991, device manufacturers agreed to add a 2% royalty to DAT recorders and blank tape.

1. Compensation for Use: The royalties compensate record companies, performers, songwriters, and music publishers for possible losses resulting from unauthorized music recordings made on DAT devices.

2. Administered by Copyright Office:The royalties will be collected and distributed under the auspices of the Copyright Office.

E. New Technology: The Copyright Office is interested in studying the DAT royalty agreement to determine if it could be applied to other situations in which technology easily enables its users to infringe copyrights, i.e., computer graphics.

F. More Licensing Societies: The solution to all of this could be more licensing societies.

1. Writers and visual artists need their own copyright-licensing organizations along the lines of the American Society of Composers, Authors and Publishers (ASCAP), and Broadcast Music Inc. (BMI). These organizations license the works of their members for some common uses such as radio airplay.

G. Some organizations have already formed.

1. In 1993, the Media Photographers' Copyright Agency (MPCA) was launched to protect and license the works of photographers in the field of electronic publishing (which includes the publication of photos on encyclopedia CD-ROMs and online stock-photo agencies).

2. MPCA is like the BMI of the photography world.

H. The Green Paper -- Bruce Lehman: The Commissioner of Patents and Trademarks has issued Green Paper on Intellectual Property and the National Information Infrastructure:

1. The Green Paper makes several recommendations concerning amending the current copyright law, including:

a. Digital transmissions over the internet, and telephone lines would qualify as a distribution and an exclusive right of the copyright owner.

b. A digital transmission would also qualify as a reproduction of the work.

c. Infringement would include an unauthorized digital transmission of the work.

d. Publication: Publication would also include a digital transmission.

e. First sale doctrine: (i.e., that an owner of a copy can sell or dispose of its copy -- e.g., video cassettes -- in any manner) would not apply to the disposal of possession by digital transmission.

f. Anti-Copying Systems Protected: Prohibit the importation, manufacture, and distribution of devices that defeat anti-copying systems.

Penalties:

1. $500,000 fine;

2. Criminal infringement;

3. Forfeiture and destruction.

g. Public Performance: Digital transmission would also be deemed a public performance and exclusive right of the copyright owner.

h. New Guidelines of Fair Use: will be developed through a series of public hearings.

i. Further Harmonization of International Copyright Laws:

1. Consideration of adopting the author's Moral Rights.

a. Right to claim authorship (or right of paternity);

b. Right to object to distortion, mutilation, or other modification (right of integrity).

XV. TWO ARTISTS' VIEWS

A. There are essentially two views of the use of an artist's work:

1. When one advertising executive for an advertising company in London said that unless someone copied his entire image outright, and is taking away his opportunities to sell it, there is not a whole lot that he would do about it.

a. If he happened to see a small piece of his work used somewhere else in a different way, the question would be: who knew if he originated that particular element in the first place? Artists always borrow from one another, and he is just one chain in the link.

2. On the other hand, one photographer-writer believes that the ease of appropriating the works of others makes it even more important to vigilantly protect what you create.

a. When it comes time to retire, what do you have to live on, but the value of your collective life's work? If you haven't defended that work, you have essentially given it away for free. Then what do you have?

XVI.SOME FINAL ADVICE ON HOW TO AVOID COPYRIGHT PROBLEMS.

A. Get permission. This is often easier said than done, especially if you don't know where to reach the copyright owner, and don't have an attorney who can help you.
1. You can contact a rights and permissions agency, such as the ones I mentioned before, BZ/Rights and Permissions, 212/580-0615. They charge $195.00 for the first hour, $125.00 for subsequent hours, and will help negotiate rights as well.
2. Thomson & Thomson, 202-835-0240, performs searches only. Flat fee rates are $60.00 and up, and rush services are available.
3. Dennis Angel, 212/239-4225, also assists in this area.
4. Ron Gertz, The Clearing House 213-624-3947.
5. Susanne Vaughn, 310-556-1409, assists in the clearance of artists' work.
6. Finally, the Copyright Office performs copyright registration searches for $20.00 an hour. You can write to the Library of Congress, Copyright Office, Washington, D.C. 20559, Attention: Reference and Bibliography Section, or call 202-707-6850.
B. Buy royalty-free stock photos, background textures, and clip-art.
1. There are many collections of high-resolution photos, and other images available on CD-ROM (floppies, too). Make sure to read the licensing agreements before you buy. The royalty-free does not always apply to every situation.
2. You can contact Edu-Corp, 619-536-9999, for a catalogue of CD titles.
C. Create your own stock image library.
1. The next time you need a photographic or video image for a production, take the picture or video yourself with a 35mm or video camera.
2. Using Eastman Kodak's photo CD format, you can easily, and inexpensively amass your own collection of stock images.
3. Contact Kodak - 716-724-4000.
D. Educate yourself. Contact the Copyright Office for its printed information which is for the most part easy to read and understand.
1. The Graphic Artists Guild, 212-463-7730, publishes Graphic Artists Guild Handbook; pricing and ethical guidelines, $24.95, $19.91, which contains information on copyrights.
2. Another popular resource: The Legal Guide for the Visual Artist, $18.95, Alworth Press, 212/777-8395, currently in its third edition.
3. Prentice Hall - Law and Business - 201/894-8260, offers binder format publications that can be easily updated, including the Publishing Law Handbook for $180.00, published in 1993, and Multimedia Law and Practice for $125.00 published in 1993. Both offer extensive copyright information.
4. There is also The Multimedia Law Handbook by Radcliff and Brinson -- available in most bookstores.
5. Also the bible: Nimmer on Copyright, available in most libraries and legal bookstores, or online at Amazon.com, the World's Largest Online Bookseller.
E. Join a professional organization. Many organizations work to educate the members about copyright law, and can be invaluable in helping to protect your work.
1. Among these organizations, there are the Graphic Artists Guild, and the American Society of Media Photographers, 212/889-9144. IICS (International Interactive Communications Society), and the Interactive Multimedia Association.

If you have any questions or comments regarding this material, please click here to send email to Harris Tulchin at entesquire@aol.com.

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COPYRIGHT & RELATED ISSUES FOR MULTIMEDIA AND ONLINE ENTREPRENEURS

Lecture Notes for UCLA Multimedia Law Classes By Harris Tulchin

COPYRIGHT & RELATED ISSUES
FOR MULTIMEDIA AND ONLINE ENTREPRENEURS

Lecture Notes for UCLA Multimedia Law Classes
By Harris Tulchin