Property Law Primer for Multimedia Developers

by J. Dianne Brinson and Mark F. Radcliffe

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Avoiding Copyright Infringement

Current technology makes it fairly easy to combine material created by others - film and television clips, music, graphics, photographs, and text - into a multimedia product. The technical ease of copying these works does not give you the legal right to do so. If you use copyrighted material owned by others without getting permission you can incur liability for hundreds of thousands or even millions of dollars in damages.

Most of the third-party material you will want to use in your multimedia product is protected by copyright. Using copyrighted material without getting permission - either by obtaining an "assignment" or a "license"- can have disastrous consequences. The owner of the copyright can prevent the distribution of your product and obtain damages from you for infringement, even if you did not intentionally include his or her material. An assignment is generally understood to transfer all of the intellectual property rights in a particular work, although an assignment can be more limited in scope. A license provides the right to use a work and is generally quite limited. A discussion of the terms of licenses and assignments is beyond the scope of this primer; it requires several entire chapters in the Multimedia Law Handbook.

Consider the following example:

Productions, Inc. created an interactive multimedia training work called You Can Do It. The script was written by a freelance writer. You Can Do It includes an excerpt from a recording of Julie Andrews singing Climb Every Mountain. It ends with a photograph of Lauren Bacall shown above the words, "Good luck." In this example, if the Productions staff did not obtain permission to use the recording of Climb Every Mountain or the photo of Lauren Bacall, You Can Do It infringes three copyrights: the copyright on the song, the copyright on the Julie Andrews recording of the song, and the copyright on the photograph. Productions is also infringing Lauren Bacall's right of publicity (which is separate from copyright) by the commercial use of her image. Furthermore, if Productions did not acquire ownership of the script from the freelance writer, Productions does not have clear title to Do It, and distribution of Do It may infringe the writer's copyright in the script. Any of the copyright owners whose copyrights are infringed may be able to get a court order preventing further distribution of this multimedia product.

License myths

There are a number of myths out there concerning the necessity of getting a license. Here are five. Don't make the mistake of believing them:

point Myth #1: "The work I want to use doesn't have a copyright notice on it, so it's not copyrighted. I'm free to use it." Most published works contain a copyright notice. However, for works published on or after March 1, 1989, the use of copyright notice is optional. The fact that a work doesn't have a copyright notice doesn't mean that the work is not protected by copyright.

point Myth #2: "I don't need a license because I'm using only a small amount of the copyrighted work." It is true that de minimis copying (copying a small amount) is not copyright infringement. Unfortunately, it is rarely possible to tell where de minimis copying ends and copyright infringement begins. There are no "bright line" rules.

Copying a small amount of a copyrighted work is infringement if what is copied is a qualitatively substantial portion of the copied work. In one case, a magazine article that used 300 words from a 200,000-word autobiography written by President Gerald Ford was found to infringe the copyright on the autobiography. Even though the copied material was only a small part of the autobiography, the copied portions were among the most powerful passages in the autobiography. Copying any part of a copyrighted work is risky. If what you copy is truly a tiny and nonmemorable part of the work, you may get away with it (the work's owner may not be able to tell that your work incorporates an excerpt from the owner's work). However, you run the risk of having to defend your use in expensive litigation. If you are copying, it is better to get a permission or a license (unless fair use applies). You cannot escape liability for infringement by showing how much of the protected work you did not take.

point Myth #3: "Since I'm planning to give credit to all authors whose works I copy, I don't need to get licenses." If you give credit to a work's author, you are not a plagiarist (you are not pretending that you authored the copied work). However, attribution is not a defense to copyright infringement.

point Myth #4: "My multimedia work will be a wonderful showcase for the copyright owner's work, so I'm sure the owner will not object to my use of the work."

Don't assume that a copyright owner will be happy to have you use his or her work. Even if the owner is willing to let you use the work, the owner will probably want to charge you a license fee. Content owners view multimedia as a new market for licensing their material.

In 1993, ten freelance writers sued the New York Times and other publishers over the unauthorized publication of their work through online computer services. And the Harry Fox Agency and other music publishers have sued CompuServe, an online computer service, over the distribution of their music on the service.

point Myth #4: "I don't need a license because I'm going to alter the work I copy."

Generally, you cannot escape liability for copyright infringement by altering or modifying the work you copy. If you copy and modify protected elements of a copyrighted work, you will be infringing the copyright owner's modification right as well as the copying right.

When You Don't Need a License

You don't need a license to use a copyrighted work in three circumstances: (1) if your use is fair use; (2) if the work you use is in the public domain; or (3) if the material you use is factual or an idea. Fair Use You don't need a license to use a copyrighted work if your use is "fair use." Unfortunately, it is difficult to tell whether a particular use of a work is fair or unfair. Determinations are made on a case-by-case basis by considering four factors:

  • Factor #1: Purpose and character of use. The courts are most likely to find fair use where the use is for noncommercial purposes, such as a book review.
  • Factor #2: Nature of the copyrighted work. The courts are most likely to find fair use where the copied work is a factual work rather than a creative one.
  • Factor #3: Amount and substantiality of the portion used. The courts are most likely to find fair use where what is used is a tiny amount of the protected work. If what is used is small in amount but substantial in terms of importance - the heart of the copied work - a finding of fair use is unlikely.
  • Factor #4: Effect on the potential market for or value of the protected work. The courts are most likely to find fair use where the new work is not a substitute for the copyrighted work. If your multimedia work serves traditional "fair use" purposes - criticism, comment, news reporting, teaching, scholarship, and research - you have a better chance of falling within the bounds of fair use than you do if your work is a sold to the public for entertainment purposes and for commercial gain. Public Domain

You don't need a license to use a public domain work. Public domain works - works not protected by copyright - can be used by anyone. Because these works are not protected by copyright, no one can claim the exclusive rights of copyright for such works. For example, the plays of Shakespeare are in the public domain. Works enter the public domain in several ways: the term of the copyright may have expired, the copyright owner may have failed to "renew" his copyright under the old Copyright Act of 1909, or the copyright owner may have failed to properly use copyright notice (of importance only for works created before March 1, 1989, at which time copyright notice became optional). The rules regarding what works are in the public domain are too complex for this primer, and they vary from country to country.

Ideas or Facts

You don't need a license to copy facts from a protected work or to copy ideas from a protected work. The copyright on a work does not extend to the work's facts. This is because copyright protection is limited to original works of authorship, and no one can claim originality or authorship for facts. You are free to copy facts from a copyrighted work. Creating Your Own Works Naturally, you don't need a copyright license for material which you create yourself. However, you should be aware that the rules regarding ownership of copyright are complex. You should not assume that you own the copyright if you pay an independent contractor to create the work (or part of it). In fact, generally the copyright in a work is owned by the individual who creates the work, except for full-time employees working within the scope of their employment and copyrights which are assigned in writing.

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