#copyright licensing

All about copyright and why You Tube disclaimers are wrong

I am intrigued by ‘disclaimers’ at the bottom of some You Tube videos, insisting ‘no copyright infringement intended’ and that copyright ‘remains with the holder’. Such statements reveal a profound ignorance of what copyright is – and how it’s breached. I can use this picture that I took, and use it freely anywhere I like because, as creator of it, I am the copyright holder. It’s mine (as was the…

So you've created something really great--a song, a picture, a short story, a blog post, a graphic--and you want to share it with the world. You don’t want to keep it all to yourself, but you also don’t want a company to sell it without your permission. You want other artists to be inspired by your work, to modify it and make something new, but you also want credit for that inspiration. The model of “all rights reserved” seems a bit extreme, but you feel comfortable with the idea of “some rights reserved.” Your country doesn't have a Fair Use exception, but you sort of like that model and want to promote it to future users of your work.

Enter the Creative Commons licensing option!

Creative Commons (CC) is a nonprofit organization that offers a range of licensing options for making content available on the Internet. As described by CC itself:

Our free, easy-to-use copyright licenses provide a simple, standardized way to give the public permission to share and use your creative work — on conditions of your choice. CC licenses let you easily change your copyright terms from the default of “all rights reserved” to “some rights reserved.”

Creative Commons licenses are not an alternative to copyright. They work alongside copyright and enable you to modify your copyright terms to best suit your needs.

You can use CC licensing for your own work (photography, music mash-ups, blog posts, etc.) while also looking for other CC licensed materials to use for your next project. Some of the more famous uses of CC licensing include:

The White House Photostream and Website

Flickr’s Creative Commons Image Collection

Wikipedia

Nine Inch Nails (the Ghosts I-IV sessions)

Each license has 3 parts: a legalese description, a plain language explanation, and machine-readable text for easy indexing by sites like Google or Flickr. You can read more about each individual license here.

I accidentally discovered what my goal as someone's 'legal counsel' would be. To "minimize risk to avoid litigation". Sounds like a reasonable goal. I'd like for my friend (let's call him KK) to not get sued over the movie.

KK has hired an attorney (with a $3k retainer) to do that, but I can't say, in clear conscience or with much confidence whether his retention is definitively sufficient to preclude any possibility of KK being sued in the future (no offense intended).

Anyway, today we discussed license acquisition (copyrighted works need to be licensed for appropriate use). This includes clips, songs and pictures.

Clips include movie, advertisements, news, interview clips (with or without sound - not sure if this matters yet), songs (just the voice or with music video) and pictures (stills, search engine results).

Some interesting questions came up today and some of the research I did:

- How do you go about acquiring the license to content downloaded for YouTube? Do you just use it and hope no one sues and then cower behind YouTube? 

- There are different types of music licenses:

"Film Festival License" is a license that permits rights to use a particular copyrighted work for screenings done at any Film Festivals. I'm guessing DVD or Advertising or w/e are all differently acquired. I have a template of this type of licensing agreement (once I ask the creator if I can, I will upload it on here).

- Whether characters from a copyrighted work are themselves copyrightable

The answer seems to be "maybe". Sometimes, even though the work itself has fallen into the public domain, the character may be copyrightable by themselves.

I imagine a lot of the movie stills and clips used in KK's documentary would qualify under the "exception" for documentary-filmmaking.

- What exactly is Fair Use? What counts as Fair Use? Are there any documentary-exceptions?

Judicially, these factors are considered to decide whether use is "fair":

1. Purpose and Nature: "Legitimate public concern", "subject of public interest"

Photographic creations must "bow to the demands of history" - i.e. get over themselves at some point. Maybe not anymore though, apparently Congress can un-public domain stuff now (if it's valuable to some other country - screw American creativity)

2. Substantiality of portion used:

- Quantitative infringement (ratio of footage used to how much is available) and Focus (Was infringing footage the focus of the story?)

- "Sparing clips of subjects' work"

3. Impact on the market for the footage: "Meaningful effect" on copyright holder's ability to reap $ from their market. Would the infringement squeeze the copyright-holder from a particular market?

4. Documentary exception (?) [EDNY] -

- Enjoys a "favored status under s107" in EDNY

- "Something of value (doesn't have to NOT be entertaining if it is a documentary)", "Educational/informational"

This is the case, and relevant text is quoted:

"While plaintiff's copyrighted movies aimed to entertain their audience, [the] defendant's documentary aims to educate the viewing public of the impact that Arkoff and Nicholson had on the movie industry.The documentary appears intended to something of value rather than simply copying the copyrighted expression that it documents. Indeed, it seems likely to stimulate a market for the original rather than replace it. Just as a parody needs to mimic an original to make its point, and a biographer is permitted to quote his subject, so too a documentary about two filmmakers should be permitted to sparingly show clips of the subjects' works."

My $0.02 summarized perfectly in an Article by Daniel Eran Dilger on www.roughlydrafted.com, wouldn't THIS be the better way to do things? In a perfect world, maybe