What Obama Taught Us About Fair Use

OK, not Obama exactly. Although, as a Constitutional law professor, I imagine he would have something to say on the legal issues.

Artist Shepard Fairey admitted using an AP photograph as the basis for his iconic red, white, and blue image of Obama, seen everywhere during the election campaign... and ever since. However, he argued that his alteration of the original photo added additional commentary and creativity to the original work, and that his rights to do so are protected.

This has launched one of the most lively and high profile discussions of the subject of "fair use" in a long time. Fair use is a term that applies to the conditions under which one can use someone else's copyrighted work without having that use constitute an infringement of copyright.

A good analysis of fair use arguments for one and all can be found in a recent article from SLATE Magazine (link, below). Actually, I like this analysis, made in one of the comments to the SLATE article, by "hawkeye1976":

"When I took copyright law several years ago in law school, I learned that the purpose of copyright is to give the author an economic incentive to create the work. It does so by providing a limited monopoly over the work. As the author of this article says, the whole point of copyright law is to encourage creativity, not stifle it.

"The fair use doctrine grows out of this purpose. If I use another's work in my own work in such a way that my work does not become a substitute for the original work--thereby infringing on the original author's monopoly over the market created by his or her work--then my use is fair. For example, if I quote a couple of lines from somebody's book in writing a review of the book, no one is going to view those quotations in my review as a substitute for the book itself and not buy the book. (They may not buy the book if I give it a bad review, but that's another matter entirely.)

"The second, closely related fair use concept is whether the use is 'transformative,' meaning that it takes the original work and turns it into something else entirely. Again, the more transformative my work is, the less likely someone is to see it as a substitute for the original.

"These concepts are what led the Supreme Court to say that 2 Live Crew's parody of 'Pretty Woman' was fair use, despite the fact that it lifts musical and lyrical aspects of the song wholesale. The Court reasoned that no one was going to buy 2 Live Crew's filthy rhyme in place of Roy Orbison's classic--it was not a substitute for the original. Also, the Court found that the dirty lyrics, even if crude, were clearly a way of playing off the wholesomeness of the original--that is, the use was transformative.

"If these concepts are applied to Fairey's work, the conclusion that his work is fair use is inescapable. No one would view the campaign poster as a substitute for the news photo. The two have entirely different purposes and different markets. And it is clearly transformative--it turns a run-of-the-mill stock photo into a work of art with powerful political overtones. Whatever stupidity he may have engaged in with respect to misidentifying the photo he used, it doesn't matter--this is obviously fair use."

I think hawkeye nails it! Hawkeye indeed! Read the full story, here:

"Is There Hope for Shepard Fairey? How does fair-use law work, anyway?"

Photos, Photos, Photos!

A recent article about Getty and Corbis, two of the big photo licensing agencies, and their aggressive policing of rights violators on the web, from the LA Times, Sept. 13, 2009:

The letter arrived at Dave Formella's Long Beach travel agency the other day. It's fair to say it freaked him out.

"It has come to our attention that you are using an image represented by Getty Images for online promotional purposes," the letter from the photo service began. It demanded $1,000 in damages, or $900 if Formella agreed to pony up the cash within two weeks.

"We were really surprised, because we didn't think we were using any copyrighted pictures," Formella, 51, told me. He said he immediately pulled every photo from his company's site, which had been put together by a Web-design firm.

But Formella said he won't pay hundreds of dollars for inadvertently using the photo -- a generic shot of a woman sitting in front of a computer. Getty charges as little as $49 to license such images.

"A thousand dollars in damages?" Formella said incredulously. "Are they kidding?"

That's undoubtedly a common reaction among the tens of thousands of people who receive such letters each year from Getty and another leading image provider, Corbis, owned by Bill Gates.

I have licensed images from both collections. They are a bit on the pricey side, although sometimes they've got a photo you're not going to find anywhere else. Case in point, I needed a picture of Anthony Sabato, Jr. from his Calvin Klein underwear modeling days for an appearance he made on the Tyra Banks show.

I had to license the Sabato photo from the agency which had the photo rights.

For generic celebrity publicity photos, I generally like Everett Collections. For stock photography, I have used Shutterstock, a subscription service (if you're going to be downloading a lot of stock photos, as we did on the Tyra show) and Istockphoto.com, which has some beautiful photography at very reasonable prices per image, which is where I got the art photo for the home page of my Rights Camera Action! website.

Hulu’s Success Creates Intellectual Property Rights Headaches

The following is a press release from this past May, from the Rights Camera Action! website, which followed on the heels of a Boston Globe story. It's reprinted here, FYI.

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The new media revolution led by upstart Hulu is changing the way we watch television, and creating a new market for old TV shows and archival films. But the additional rights needed to rebroadcast on the Web and handheld devices is also creating a scramble for a piece of the profits.

Earlier this month, Disney struck a deal with Hulu to air a bunch of its ABC subsidiary content on the Web provider’s bandwidth. With the explosion of TV content heading for the Internet, the "re-clearing" of content for the Internet is a new and costly problem for producers and broadcasters. At the same time, this new market is creating a new growth opportunity for a niche of pros and companies that specialize in rights clearance.

A Boston Globe story on May 3, 2009 cites programming outlet WGBH, which is having to negotiate new licenses for documentaries in its archive for web consumers:

“It's only 30 seconds out of a 90-minute film, fleeting glimpses of then-President Jimmy Carter as seen in a 1976 Playboy magazine interview. But to secure the rights to use these five photos in the documentary series 'The Presidents,' which re-aired last fall, WGBH had to pay Playboy $12,400.

“That was all well and good for the show's broadcast and even for its release on video. But now, in the age of digital downloads - when TV networks are hungry to find new ways to attract larger audiences - the challenge has started all over again. WGBH has to go back and strike a deal for the digital rights to each photo of Carter.”

Actors have also upped the ante. The new union contract which has been tentatively approved by the Screen Actors Guild, as reported several weeks ago by CNN, and after months of protracted negotiations, includes so-called "New Media" provisions to protect actors whose performances are reused on the internet and other downloaded formats.

According to the the Alliance of Motion Picture and Television Producers, "Because both sides were willing to compromise, we now have an agreement that will provide SAG members with meaningful wage boosts, pension increases, first-class health benefits and a complete set of new media rights and residuals," the Alliance's Web site said. Producers have yet to see the actual contract provisions as it hasn’t yet been fully ratified by the membership.

Obtaining the new and expanded rights is a complex business, and can be a costly one for content owners. Professionals in the rights clearance business usually have extensive backgrounds on the production side of the business, often in the trenches of the Hollywood entertainment and music industries. They use the their accumulated contacts and knowledge to get negotiations done quickly, efficiently and on-budget. Clearance experts do the legwork of locating the rights holders and negotiating for photo rights, performance rights of actors and musicians. They will also handle directors and writers payments, deal with any guild requirements, in addition to any needed music clearance.

Rights Camera Action! is a rights clearance company based in Los Angeles, specializing in research and clearance for film, TV, merchandise and advertising. According to the Boston Globe story and industry sources, the demand for content for the Web is creating new opportunities for content producers to monetize their archives, and for those individuals and companies who specialize in rights clearance, the business of obtaining the necessary third party intellectual property rights for TV programming.

More REALITY: Right to Privacy vs. Right to Publicity

This post follows from a question on the last post on Reality Clearance Guidelines.

The question was this:

"Thanks for these guidelines. Curious, though: I've read that people who are captured on film in a public place had no expectation of privacy and therefore would not have a case against you without a release. Can you comment on this? Any cases where this has been tested?" (from filmmaker Dave Gardner, on Linkedin).

And here's my answer:

Hi Dave... yes, that is a good question, and an argument I've heard as well. There are more issues than "privacy" when exploiting a film, although that is one of them.

Publicity rights are different from privacy rights. The following quote from the Library of Congress website makes this distinction:

"The privacy right or interest of the subject is personal in character, that the subject and his/her likeness not be cast before the public eye without his/her consent, the right to be left alone. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation."

The above article goes on to point out that publicity rights are regulated by states. California, for example, has a very explicit set of laws due to the entertainment industry presence here. Other states, as I understand it, do not so regulate. But, we are interested in risk reduction and the freedom to distribute broadly in TV and film, and when we talk about Clearances. Here's what they say:

"Privacy and publicity rights are the subject of state laws. While many states have privacy and/or publicity laws, others do not recognize such rights or recognize such rights under other state laws or common law legal theories such as misappropriation and false representation. What may be permitted in one state may not be permitted in another. Note also that related causes of action may be pursued under the federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of a person's identity in order to create a false endorsement."

On the other hand, supporting your question is the following quote from the Center for Social Media website, a publication called "Yes You Can!" (you can download it as a PDF) written by Peter Jaszi, Washington College of Law:

"In answer to a common (but not intellectual property-related) question, documentarians don’t need photo releases from individuals who are filmed in parks, streets or other public places where they have no expectation of privacy. If you single out an individual for special attention, you may a need a release."

However, note that he's talking about documentary and non-featured use, here.

If you decided to make a reality program about your neighbor in his daily routine, and followed him around out in the street all day long, for a month, would you be able to exploit that footage without getting a release for him or compensating him?

I wouldn't try it, based on the right to publicity, even if you aren't violating his privacy rights. You would want a release and the distributor of your program would no doubt insist on it, as well.

Any lawyers in the room? Feel free to chime in...

-Keith

Clearance Guidelines for Reality TV

Producers, cameramen, post supervisors and editors should have knowledge of clearance concerns. Why? So that they can get the creative result that they desire, without having to risk losing great footage or key scenes that move the story forward.

When I was working on the Switched! TV show (ABC Family), I compiled a handy list of clearance rules called the Top 10 Clearance Guidelines for crews to watch out for when producing/shooting/editing. For the life of me, I cannot find that list and this is my best effort to re-create it. (I did actually think of 10 points! Whew...)

Here are some basics that apply to the Reality and Documentary world.

1) Lose the music. Make sure that you don't shoot key scenes over a blasting U2 song that is going to cost $$$ (more than you want to spend, believe me) to license. What to do, instead? Bring your own library music to the scene (the house party, or coffee house, or bar shoot). You can easily find tracks that will do the trick. You will pay a needle-drop fee (meaning that you will pay for that track to use in your show, without recurring fees to licensors or artists). And you will get the scene with the music you want, and no worries about a sound track married to music that you can't afford!

2) Watch the crowd scenes. There are various ways to handle these, when needed. Use area releasing, i.e., a large conspicuously placed sign that tells people that there is filming taking place, and that their entry thereupon constitutes their consent to film them and use their likeness in the program. Make sure you shoot the sign, pan to the crowd and/or venue, and pan back to the sign. Note it on the tape log... because that is a legal protection for you in the future. Also, since minors are beneath the age of consent, they aren't technically covered by an area release. So, don't shoot them, or get them released, with a parental consent!

Alternately, establish crowd scenes by shooting backs, feet, and avoid shooting their faces. This is good for sidewalk shooting, crowded hallways, mob scenes, drive-by's... where releasing isn't possible. Don't shoot them head-on. Go for their backs, torso's, etc. This may sound dumb, or unworkable, but I'll give an example. On a show about fat kids, starring Shaquille O'Neal, producers shot a lot of footage of fat people on the beach, at ice cream concessions, etc. Did we need to see their faces to make the point? No! Just their chubby bodies. :)

3) Minors. OK, these are of concern in any shoot. The reason is that legally, they cannot sign a contract that is binding. There are decisions that have come down both ways, where minors are concerned. But, Clearances is concerned with reducing risk as much as possible. You don't want to have to defend yourself against a lawsuit, or risk an E&O (Errors and Omissions insurance) claim, or denial of coverage. So, make sure that the minor AND the parent sign a release, and make sure that you release every minor that appears on camera. No exceptions.

4) Blur. If you cannot release someone in a key scene, and you haven't been able to get a consent, the safest thing to do is to blur the un-released people, if they are recognizable in the shot. Soft blurs and long shots can be used where you are just doing establishing shots, to minimize risk.

5) Logos. Every producer will tell you to avoid shooting logos, on t-shirts, ball caps, cars, equipment, in restaurants, on drive-by shots, you name it. No logos! Do you want to know why? Two words: Ad Sales. Even though you may not care about logos, and the manufacturers probably don't, either, the ad sales department at the network WILL care. Their alliances with major brands will be in conflict with the appearance of logos, prominently in your footage. So, avoid the major, national brands most of all (no Starbucks coffee get-togethers with signage everywhere, MacDonald’s excursions with the name and logo mentioned and visible at every turn, or Coke cans sprawled across the kitchen table). Instead, use mom and pop locations, local brands, and lots of greeking tape!

6) Release everyone. Hire a local PA to go out and put them in charge of releasing people. Give them a summary of the rules (as laid out herein, and any more that you add) so that they know what to do. Give them a Polaroid camera so that they can take pics of every person they release, and attach the photo to the release. (It will save you so much time in the edit bay that it is worth every penny you spend on the camera and film). Use carbonized forms if you have to shoot kids without parents to hand. Get the kid to sign, and get his address and phone number. Then you keep one copy of the release and give the other to the kid and tell him to take it home to the parent to sign. Tell him/her that you won't be able to use it unless the parent signs! And he won't appear on TV! And he would hate that, wouldn't he/she? Of course.... and then you follow up back in the office until you get the release. The rule we used on Switched! was "Focused and Featured." If the camera focused on someone, or they were at all featured in a shot, they had to be released. Otherwise they were blurred. (If you don't care that they are in the shot, and can be lost, then you don't need to release them).

7) Obtain location releases. Your release PA can handle these. Simple enough to get. If you are shooting outdoors, give a call to the local film office and see if you need a permit. Many cities require none, or they will help you to pull one if one is needed. Locations like airports may require them, as will large metro areas, depending on your crew size. Watch out for key landmarks like the Walk of Fame in Hollywood and Grauman’s Chinese, as anything more than establishing shots. If you feature them, you should get them released and may incur a fee for doing so.

8) Be careful of inadvertently shooting artwork in the background of shots. So, if you set up an interview, don't do it with a Picasso in the background, or even a lesser-known work of art, that appears in the entire interview. You will end up having to re-shoot. Get your own artwork that is original, if needed, from a prop house, etc.

9) Watch out for posters in kids' rooms, or other depictions of famous people. Technically, they are not free of copyright for the photography, and the artist also has rights that can be violated by including them in your program.

10) Watch out for photographs in general. Get releases for photos that appear in your shots (a photo release from the photographer, and also get anyone appearing in the photos to sign an appearance release).

So there's your all-new, Top 10 Rules for Reality clearances, equally applicable to documentaries that might be headed for TV broadcast.

Happy shooting!

Google Book Search: A Great Resource for Out of Copyright Books

Producers who would like to draw on the well of out-of-copyright books to adapt for screenplays (think the entire Jane Austen series: Pride and Prejudice, Sense and Sensibility, et al) can find these free on Google Book Search.

Not only filmmakers will benefit, as Web users will also be able to download and use a large archive of digitized media available on Google, including free books from its out-of-copyright selection.

Google Book Search deals with three categories of books, which can be a great resource for screenwriters and developers:

1) In-copyright and in-print books, i.e. books that publishers are still actively selling, the ones you see at most bookstores. Google has in the past referred these searches to other sellers like Amazon, but will be soon be set up to sell these directly, cutting out the middle man.

2) In-copyright but out-of-print books, which aren’t actively being published or sold, so the only way to procure one is to track it down in a library or used bookstore. This is a way to find books that simply couldn’t be found otherwise. Many of these books will be preview-able on Google, and available for purchase.

3) Out-of-copyright books. Google currently has 500,000 books available on Sony Reader (Sony’s version of the Kindle being marketed by Amazon) through a deal it made with Sony to make available its library of digitized books printed before 1923. That’s twice the number of books which are available on Kindle, currently.

The controversial Google archive had to overcome lawsuits by publishers and author guilds and finally agreements were reached in Fall, 2008, so that the project could proceed.

Google Book Search tool also allows users to embed material from books into websites and blogs. The Google Preview Wizard helps you “quickly, easily, and reliably integrate previews with your site.”

Fair Use: When it Comes to Your Rights, Use Them or Lose Them!

What I think is interesting about "fair use" is the amount of mystery surrounding the term. People often know it, but don't really know what it means. That includes industry people (Film, TV, journalism, literature) who actually need to know the ins and outs, but don't.

In particular, what I find interesting about the fair use doctrine, is that these are rights that are basically yours, mine, ours... that we either take because we know they are ours to take (like a tax deduction) or we lose the rights by our own doing! To continue the analogy, the IRS is not likely to call you up and tell you that you missed a deduction. OK, it's never going to happen, let's face it.

Similarly, no author/filmmaker/musician is ever going to say, "Sure, take my work and use it! For free! No charge! It's Fair Use!" This is really one of those times when it is a Don't Ask, Don't Tell proposition. So, we'd better know, ourselves, when we rightly can take the position: this is ours to use, it is fair to do so.

According to the Center For Social Media (American University), "Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it."

See? I just did exactly that. There are rules for doing so.

The Center for Social Media is a great resource on Fair Use, and publishes a code of best practices in fair use, to help to educate and encourage filmmakers to understand what constitutes fair use and to know their rights.

The Center's "Yes, You Can!" checklist (also available on its website) is a valuable tool as it provides answers to some of filmmakers most common clearance questions. As it points out, many of these questions don't fall into "fair use" at all, but rather "free use."

Example: "Buildings that can be seen from public areas can be filmed for any purpose. Although there has been copyright protection in architectural works in the United States since 1990, the Copyright Act includes an exemption for filming. It doesn't matter whether the building is the subject of the film or an incidental background."

As you can see, there are other issues, related to fair use, but which might be more properly called free or unrestricted use. For example, when something is actually not copyrighted or in the "public domain," then its use is not restricted. It can be confusing to figure these things out, which is why there are people like me who help to research rights.

Also, when it comes to fine points of law, as these matters are often contested, there are some good lawyers out there. One whom I really admire is Michael C. Donaldson, author of Clearance and Copyright. I know that you are thinking that this doesn't sound like a fascinating read, it isn't a Grisham novel, but Donaldson has some truly amazing stories to tell. I've heard some. Tales of those who got away with things, and those who didn't and paid a big price (and there are some very famous filmmakers and films included in both categories!)

One notable story concerns a church sculpture used as a backdrop in the movie Devil's Advocate, starring Al Pacino. Although the cathedral sculpture was assumed to have been in the public domain due to the age of the building, it turned out that the sculpture was a relatively new addition to the building.

The relief sculpture was created by renowned sculptor Frederick Hart, who won an international competition to design the facade of the west entrance to the Washington National Cathedral. The sculpture was was filmed and used as a wall on the penthouse suite of John Milton, the character depicted by Pacino, as he delivers a diabolic speech in which the figures on the sculpture come to life and writhe erotically.



Neither the Cathedral nor the artist had endorsed the use in the motion picture, and so they sued. The movie had already been released into general distribution, but was slated for home video release. As part of a settlement that also included Warner Brothers attaching stickers to all of the videocassettes disclaiming any relationship or endorsement by the Cathedral, Warner had to re-shoot over 20 minutes of scenes where the sculpture could be seen.

How's that for a copyright infringement nightmare? It is a classic example of assuming that something was in the public domain, and therefore not subject to any kind of copyright, which was actually a more recently copyrighted item.

On the other side of the spectrum, there seems to be a fear in many circles of using trademarks visibly in any kind of TV production, which I've seen on a number of reality shows I've worked on. This seems to confuse trademark with copyright. It extends to logos on t-shirts, ball caps, etc. And, although many TV shows will limit the use of trademarked items on its shows, the reasoning for doing so has nothing to do with any legal or copyright issues.

Trademark, as Donaldson points out, merely tells you the source of a product, and the appearance of the trademark is protection for the owner. As long as the trademark appears and is used, the protection is there.

As mentioned, many networks want to limit the appearance of trademarked items for an entirely different reason. They may have relationships with a brand by virtue of their sponsorship deals. If they have big sponsorship deals with Pepsi, they are going to limit their promotion of any trademark relating to Coca Cola, etc. These are business decisions, not based on any kind of legal issue.

Yet, many producers have become confused by this (apparently) and concluded that there is some danger in using a trademark in TV or film. Of course, if there is some implicit sponsorship, or negative use of a brand, it could generate some kind of complaint. But, the trademark is not a copyright. As long as it's not used in an unfavorable light, it's going to be hard for a trademark owner to complain that it's getting exposure for its brand, as exposure and attribution to the owner is the entire reason for a trademark.

Fair use, which means the use of copyrighted material in a new production, has a definite place in creative work. For example, satire couldn't be done without it. Saturday Night Live makes this kind of use its bread and butter, in skits that satirize movies, TV and politics. They aren't paying huge licensing fees to make fun of these properties, nor are they asking permission.

The video, "Recut, Reframe, Recycle" that appears on the Center website is a great primer on fair use in online video. As the commentary points out, some distribution centers are starting to filter out third-party content from videos appearing on their sites. This doesn't necessarily mean that filmmakers, or those budding geniuses creating online mashups for YouTube or other online venues, don't have the right under "fair use" to use the copyrighted content in their new works.

You can also watch the Center's video on its Code of Best Practices in Online Video at the bottom of this blog... so check that out, as well.

Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video

What is a Most Favored Nation Agreement... and How Is It Used in Negotiation?

One of the tools of negotiation when it comes to rights and clearances is the Most Favored Nation agreement. The most favored nation idea is originally a political concept, which was a protection in trade. China, for instance, in hammering out a trade agreement with the United States, might demand a Most Favored Nation status, meaning that no other nation would be more favorably treated in its trade status with the US.

This status, in negotiation, is of course accorded to entities who merit it. It is a protection for them that, as negotiations proceed, they will not be left behind if some other party comes along and ups the ante in the negotiation.

In just this way, in the entertainment industry, Most Favored Nation, often shorthanded to "MFN" or "Favored Nations" - is a guarantee to the contracting party that his or her deal will be no less favorable than the deal of anyone else being similarly featured in the project or program. It can apply to footage, music, or talent.

The first question out of many talent agents' mouths, when offered a deal for their client, will be, "Is this Favored Nations?"

The wording of the deal can be tweaked in various ways - for instance, it can exclude certain parties by name, or name others. For example, an agreement could stipulate that the compensation will be MFN with the star actor... or no less favorable than any actor appearing in the picture with the exception of the star or stars. In this way, the producer can pay the top tier actors one level of compensation, and the second tier actors lower levels of compensation for reuse of their performances.

These very specific wordings are not common in agreements, as most producers don't want to make such guarantees in writing, but might be stated orally or in emails or side-letters.

More common are simple statements that no other actor appearing similarly featured in the movie/TV show/game shall be more favorably compensated than the client, the actor signing the contract.

Sometimes, the MFN guarantee extends to the credit accorded the actor. This is normally a negotiated point inserted at the request of the agent or lawyer negotiating the deal on the actor's behalf. Any element of the deal can be so stipulated: compensation, credit, royalty, etc.

MFN negotiations can be a two-edged sword. They can help keep costs down by assuring talent that, even though the money offered may not seem great... they won't be getting any less than anyone else is getting.

On the other hand, once offered, if costs start to spiral upward because someone holds out or drives the negotiated price up, everyone else that has been guaranteed MFN status will be entitled to a similarly high fee. Therefore, MFN is usually offered judiciously, and late in the negotiation process rather than at the outset, if it is used at all.

Some producers will not use MFN deals at all, as they feel that it endangers their ability to negotiate. When used, some producers will offer them only in guarantees not in the contract itself, but in verbal discussions or other communications.

However offered, these agreements are considered binding, and should not be put on the table unless they can and will be fulfilled. Agents, managers and talent will often communicate among themselves. Sometimes a law firm will have two or more clients that are connected to the project you are working on, and will be privy to negotiations. The adage, "It's a small town," certainly applies to Hollywood and the negotiation process.

Most Favored Nation deals are an important tool in negotiation, and it’s to a producer’s advantage to understand them. They shouldn’t be agreed or resorted to without thought and deliberation. Although they can greatly speed a negotiation, they can also sabotage it if all the consequences are not weighed.