Content Rights for Creative Professionals

Copyrights & Trademarks in a Digital Age

Arnold Lutzker

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780240804842
• eBook ISBN: 9781136047534
• Topic: Media & Performing Arts
• Subtopic: Film & Video

Content Rights for Creative Professionals is for professionals and students working in all areas of media (film/video, photography, multimedia, web, graphics, and broadcast) who need to know what the law requires and how they should properly utilize copyrights and trademarks. This book outlines critical concepts and applies them with explanations in real-life applications, including many cases from the author's own practice as well as those of various media professionals.

This 256 page text is a practical guide designed to provide its reader with a firm understanding of the principles underlying the ownership and use of content, so that when questions arise, they will be able to make correct, well-informed decisions-whether concerning their personal works, or works of others that a company wishes to copyright or trademark. In addition, the reader will be more capable of exercising sound judgment in structuring employment and contract relationships and of acquiring and/or licensing works, which are at the core of the business of communicating.

Part One
Copyright

Chapter 1
Overview of Copyright: The Big Picture

DOI: 10.4324/9780080503028-2

We begin with an overview of the texture of copyright. What is it and why everyone, particularly creative professionals and those who work with content in the media and education—those whose job is to communicate—should have a firm footing in copyright. Aside from an understanding of principles, our goal is to impart information to help with judgment calls. Each book or article, every photograph, video, or CD raises questions that touch on copyright. Because communication is instantaneous and ever more interactive, one cannot be paralyzed by uncertainty about what content can be used to teach, to share, to exploit. So we explain the traffic lights of the law—the green light that tells you when the road is clear to “go,” the yellow light that urges “caution,” and that red bugger that hollers “hold up, there’s a problem here.”

What makes copyright fascinating from a legal perspective is that it involves the tension between two bedrock constitutional principles. Article I, Section 8 instructs Congress to pass laws granting to authors exclusive rights to their writings for limited times, while the First Amendment prohibits Congress from passing laws that inhibit free speech. Copyright principles have been embodied in federal laws since the founding of our nation. Every generation or two, they have been updated to reflect technological developments, with the most recent major changes coming in the Copyright Act of 1976 (we refer to this throughout as the 1976 Act) and the Digital Millennium Copyright Act of 1998 (DMCA). The 1976 Act was amended several times in focused ways between January 1, 1978, the day it took effect, and October 28, 1998, when the DMCA took effect. Still, the core principles of the copyright law have remained the same. The statute

• Defines a copyrighted work and what is meant by exclusive rights in that work.
• Sets forth a term of years during which the author can commercially exploit the copyrighted work.
• Governs the ways in which copyrighted works are owned and can be transferred.
• Provides penalties for those who would take an author’s copyrighted work without permission.
• Establishes limited exceptions so that important public policies can be advanced.

The tension with the First Amendment still persists, and in the age of cyberspace, it is more acute. How many times has it been said, “The Internet has no rules?” As this new medium evolves and electronic transmissions confront copyright barriers, the tension becomes palpable on the information superhighway. Rules of the road exist, but they are being resisted. We delve into that conflict and see how the challenges are being addressed.

Traditional media—radio, television, cable, even the venerable newsprint—have had to grapple with copyright principles from their start. Even with decades of experience, confusion reigns in many quarters. “How far can one go in using the works of another?” is an age-old question. Let’s put this in perspective by some “fact patterns.” They have been drawn from my practice and the pages of our daily newspapers.

Setting the Stage

1. A radio manager has had a long-running dispute with Arbitron (ARB), one of the leading firms that rate the popularity of programs. ARB measures audiences for radio programs and issues reports. Then, radio stations rely on the data to price the value of their air time for advertisers. But our radio manager felt his station consistently paid a king’s ransom price for the diary numbers. Fed up, he decides not to renew the ARB contract. As luck would have it, when the very next ARB report is released, his station is credited with moving up five slots and is top rated in drive time (the prime time for radio, when most people drive to or from work). He obtains a copy of the diary report from his ad agency and highlights of the market numbers are printed in “the trades,” specialized magazines that cater to radio and advertising executives. Determined to make a splash, his sales department prepares a chart based on the report, comparing the station’s ARB ratings data with all competitors. The report is sent to 300 advertisers in the market. When ARB’s representative calls to complain, the red-faced manager asks his staff, “Any problem?”
2. A drama is caught on videotape by a viewer—police beating a drunk-driving suspect. The viewer calls a television station’s “hotline,” and a reporter picks up the videotape. It is played on the noon news, and by nightfall, the network is clamoring for copy. The station sends it on, asking for on-air credit with its logo on-screen at all times. When the viewer who made the tape sees his video on national television, at first he is thrilled, then he gets angry: Who gave them permission, and where’s my credit? He calls his brother, “the lawyer,” who contacts the station demanding big compensation. Does the viewer have a claim?
3. A Tennessee television station’s fall campaign has a VOLUNTEER theme. Every week for one year, the station produces five-minute pieces on the wonders of the state, from the statehouse to the mountain peaks. The series, which captures the native beauty of the countryside and the warmth of its residents, is scored with inspiring music from the Capitol Symphony Orchestra. The series is greeted with such acclaim that the station executives decided to market it commercially. They invest about $30,000 creating a two-hour video and release 5,000 copies to local chain stores. Their plans hit a snag when the Capitol Symphony Orchestra and agents of the composers contact the station. Is there exposure here?
4. Thanks to a provision of the Cable Television Consumer Protection and Competition Act of 1992 called retransmission consent, television broadcast stations can negotiate a deal with the local cable system for carriage. Instead of having their signals carried for free (as had been the case for 15 years), the stations can now say to the local cable system_ carry my local channel only if you pay a fee or give me extra local access. Many stations receive local access in the form of a cable channel that they can program with a mix of local news and sports. With the popularity of regional sports networks, one station manager decides to capitalize on the wealth of local sports and blend it with a mix of highlights pulled from regional cable channels. While camera crews go to high school and college fields taping games, station engineers edit video feeds pulled from other cable channels down to two-minute summaries. The station also hires former local sports stars to simulate play by plays by reading box scores from daily newspapers. How does this plan sound?
5. A rival television station has the News Story of the Year breaking in its studio. A gunman, berserk but photogenic, storms into Channel 5’s studio with a loaded rifle. He demands air time. The station executives have little choice but to oblige. What unfolds for the next hour is compelling, personal, and live TV. The gunman rants against his family, his city, his boss, his mindless life. Every television viewer in the market is riveted on the story. All the competitive stations can do is set their VCRs in motion, capture the drama, and wait for it to end. The conclusion is sad and horrifying—the gunman shoots himself before startled onlookers. Instantly, the story is transformed into national news. When an arch competitor asks permission to air its off-air tape of the events, Channel 5’s news director refuses. Spurned but insistent, the rival station leads its 6:00 p.m. newscast with the footage it taped off the air. Even after receiving a threatening call from Channel 5, the footage tops the 11:00 p.m. evening newscast. The next day, a lawyer’s letter arrives. Concerned?
6. Breaking out of the crowded Internet pack requires creativity. One local phone company has a surefire campaign. It will build Web home pages for all its customers and pick the “Sweet 7” each week, creating hotkeys for quick access to them. The home pages are creative and informative. Some enterprising subscribers placed newly released CDs by top recording artists on their websites. Others pick photos from Time and Newsweek and give them new captions, while still others scan in chapters from best-sellers and rewrite the endings. The campaign proves instantly popular and subscriptions soar. The telco’s Internet Access Group is sky high until it receives a letter from a publisher threatening a multimillion-dollar copyright claim. What gives?
7. George Lucas announced he would do it again! Star Wars: The Phantom Menace, the first episode in his Star Wars saga to be released in almost 20 years, hit the theaters with more ballyhoo than any film in a generation. However, between the release of Return of the Jedi in 1983 and this episode, the Internet craze and digital communications hit high gear. With computers more sophisticated than the ones that helped land a man on the moon sitting in every teenager’s home, Lucas and his film company are concerned that the new Star Wars movie would be pirated and shared around the world. To beat the pirates to the punch, Lucasfilms launches an attack, not directly against known infringers but against the unidentified thieves. They do so by advising online service providers (OSPs), the Internet middlemen (including many colleges whose students log onto the Internet via school servers), that a copyright menace—pirated versions of the film—is about to be unleashed. Every OSP, they warn, has an obligation under the new DMCA to search websites for infringing copies of the movie. Does the Lucasfilm effort make the grade?
8. The Recording Industry Association of America (RIAA) is intent on cutting down what it views as the 20th century version of the black plague, the seemingly uncontrolled copying of digital sounds. Despite creation of a technical system nicknamed CSS, a program that scrambles digital codes to hinder copying, a teenager from Norway devised a computer program to defeat the scrambling system. Dubbed DeCSS, the program becomes a popular rallying point for hackers and others outraged by the high price of CDs and feeling challenged by RIAA’s aggressive campaign to shut down unauthorized copying of musical CDs. When a Princeton professor wants to give a talk about the DeCSS program, RIAA threatens reprisals. To RIAA’s surprise, the professor sues, defending his First Amendment right to speak his mind. RIAA counters that it is just kidding—although it is intent on shutting down DeCSS, it has no gripe with the learned professor. Is this a real dispute?
9. The death of George Harrison of the Beatles is a sad reminder that the freewheeling days of the 1960s are long since gone. Stories about the events in his life made the headlines fall and winter of 2001. One of the more curious events was the retelling of a copyright infringement tale that Harrison inadvertently experienced. It seems that the melody of one of his most popular songs, “My Sweet Lord,” too closely parallels the tune of “He’s So Fine,” a 1963 hit by the Chiffons. But Harrison neither intended to copy the prior work nor was aware that he was doing it. Should that have been the basis for a legal complaint?

What is the common ingredient in all these stories? In each case, someone uses content without regard to the consequences of copyright law (Figure 1-1). These are textbook examples of how to get into trouble with copyright, real fast. They also reveal the double edge of copyright. The content is tantalizing and useful. In each instance, a clear, discernible benefit flows from the use of the material. The harm to someone else’s interest may not be at the forefront of the users’ minds. But it should be. A calculation needs to be made, one that balances the attractiveness of using the content with the right to do so. That assessment is not measured simply by the urgency of delivering news or information or by a subscriber’s desire for access. What must be assessed is whether the publisher has the right to use the content as planned. Could someone claim a superior right and stop the use? Must the content be cleared? Or can it be used, no matter what anyone says?

Figure 1-1Copyright Act—The Big Picture

These are the copyright questions. Now, let’s discover the answers.

Chapter 2
What is Copyright?

DOI: 10.4324/9780080503028-3

The Constitution of the United States gives Congress power to pass laws in order to encourage authors to create works. The encouragement comes in the form of exclusive rights to their writings for a limited time. Those rights are defined in the Copyright Act. There are only two key requirements to qualify as writings covered by copyright law: fixation and original and creative expression.

Fixation

The work must be fixed in a tangible medium of expression. Expressions come in different forms. They can be words contained in an article or a book; images preserved in photographs or film; sounds secured on sheet music, audiotapes, or CDs; or code stored on computer disks or hard drives. Rules defining how a work is fixed are flexible; over the years, new media have been incorporated. From piano rolls to computer disk drives, the law covers a broad swatch. Thus, the authors of books, articles, movies, tape recordings, snapshots, software, sheet music, newspapers, charts, graphs, choreography, and costumes can all lay claim to copyright protection in their works.

A glaring exception is unrecorded conversations: If words are not fixed, there is no copyright protection. However, flip on the tape recorder and, voila, fixation and hence a copyrightable work. During one of the big trials of the 20th century, the O. J. Simpson murder case, one of the most infamous conversations of recent years, Mark Fuhrman’s private conversations about cops and blacks, was recorded without his awareness. The tapes debuted during cross-examination in the trial. They were used to prove something about the state of mind of the witness. But, curiously, by making a tape recording, the aural remarks became copyrighted works. Using them as evidence in a trial is one thing; exploiting them in the marketplace requires a copyright analysis. Had they never been recorded, the world would have lost an insight into the mind of a key witness. In addition, at some time in the future those tapes may have a publishing value. If the tapes are ever exploited, as they are his words, Mark Fuhrman will certainly have something to say about it.

When television was in its infancy, live performances were the norm. Some of these performances were preserved by kinescopes, recordings made off a monitor. The kinescopes qualify for copyright protection. Indeed, what we know about the early days of television, from I Love Lucy to The Honeymooners to Today and Playhouse 90, is owed to those kinescopes. Some of those programs make up formidable parts of valuable cable networks such as Nickelodeon. Even without the kinescopes, many of the old TV performances have a copyrightable form, written scripts. Those scripts are fixed works.

Television’s predecessor entertainment medium, vaudeville, with its stand-up comics, was notorious for “gag theft.” The stars of the “Borscht Belt” regularly stole punch lines from each other, but they always did so with a copyright risk. If the gags were scripted, a copyright claim could have been made. However, when the live performances were ad-libbed and no script or underlying text was used and no recording was made, they fell outside the scope of copyright protection. In sum, if a work is fixed in a tangible way, copyright law claims dominion over it.

Original and Creative Expression

The other key for copyright law is that the fixed expression be original and creative. Originality means the work is not copied; creativity mea...

Table of contents

• Cover Page
• Table Of Contents
• Content Rights for Creative Professionals
• Part One Copyright
• Part Two Trademarks
• Part Three Collateral Concerns: Things You Cannot Ignore
• Part Four Content Rights: The Media and Film
• Part Five Content and New Media: The Internet Has Arrived
• Glossary
• Index