In a world where zoom has a new meaning and everyone is a content producer, what are the rules for respecting and protecting copyright? Noted author, educator, and entertainment & IP attorney Thomas A. Crowell and Donald R. Simon, JD/MA, Director, Member & Staff Education at National Cable Television Cooperative, discusses this and other questions related to content licensing, fair-use, joint authorship, and more in the above video.
What makes the conversation useful is that Don and Thomas both combine a knowledge of the law with a background in the arts. Crowell, the author of the book, The Pocket Lawyer for Filmmakers, provides entertaining and informative visuals to help steer the conversation. Some takeaways:
- WFH has a totally different and very important meaning in the world of content contracts.
- Film schools aren’t doing enough to prepare students for the business side of the creative business.
- Securing rights upfront is a must-do and an investment in the future.
The conversation highlights are below. Click on a timecode to jump to that point in a new YouTube window.
- 03:00 Thomas Crowell points out this conversation is educational and not legal advice.
- 05:01 – WFH doesn’t always mean Work from Home. The acronym in the context of content creation means Work for Hire. Crowell calls these “magic words” for a content producer if they are going to have rights to their content.
- 13:12 – How does the scope of employment impact copyright ownership?
- 16:17 – Is an email sufficient as a contract for a Work for Hire?
- 19:11 – A dispute between the special effects house and the producer of The Stuff, a 1980s movie about killer frozen yogurt, is given as an example of an implied contract. Still, Crowell emphasizes that producers should always have written contracts.
- 21:09 – Crowell explains the concept of Joint Authorship and that both parties own the rights to the work. If the right contracts in place between the parties, there can be a “collaboration sabotage” situation.
- 28:02 – Don opines on copyright challenges that film students have with regard to their school projects. In general, film schools appear to not provide enough education/training on media law. Don emphasizes that ignorance of copyright law is not an excuse for content producers.
- 32:20 – Ken asks for and receives permission to rebroadcast/record Thomas and Don. Hmmm, based on earlier the conversation, it appears that this recording is a Joint Authorship and that Don and Thomas could sell rights to this recording as well.
- 33:55 – Licensing content, particularly as it relates to uploading content on YouTube is the next topic of discussion. Crowell explains YouTube’s takedown process, including its content ID process.
- 39:17 – Don opines that there sometimes appears to be a bit of overreach in the case of IP owners requesting content removal in cases that could be argued as fair-use. That is, copyright holders have to consider fair use when sending a takedown notice. He points to the Electronic Frontier Foundation’s Hall of Shame for examples of this overreach (see this article about law professors who had the video of their panel on the topic of fair use removed from YouTube).
- 43:55 – Crowell provides an overview of and the process for obtaining music rights for audiovisual works.
- 49:21 – Don’s experience is that new filmmakers often underestimate the time required for and the cost of clearing music rights. Distributors are going to want music cue sheets and evidence that the producer has obtained the music rights.
- 50:43 – Should one rely on YouTube or other services to clear music for one’s production? Do their rights carry over to other platforms?
- 53:44 – Ken references a Colin Dixon nScreenMedia interview with Audionamix AI, which removes music from old television shows. Their product is for content owners who don’t have rights to music that was licensed prior to the rise of new distribution methods (e.g. online). Don points out that the TV show Freaks and Geeks experienced this issue and is an example of how important music is to video.
- 55:45 – The topic of copyright is addressed, particularly as it relates to using music that YouTube makes available. The question is whether the user of the music will be indemnified if the person who uploaded the music wasn’t truly the owner of said music.
- 01:00:31 – Crowell explains fair use. An important takeaway is that fair use is a defense and isn’t a license. Note, the clever way Thomas has created graphics that are familiar yet are uniquely his.
- 01:02:00 – This is a must-watch section, as Crowell talks about the myths of fair use. He talks about the distinctions between the types of content (e.g. newspaper versus movie), whether it was the “heart of the work”.
- 01:10:00 – Transformative use of a work is a key element of a successful fair use defense.
- 01:11:58 – Tempting Elon Musk to sue him, Ken argues that the photo he took of a Tesla was transformed into a mobile 5G cell site, a rocketship, and a flying car. Crowell talks about trademark tarnishment and provides an example from the 1970s when the Dallas Cowboys trademark was co-opted. Don mentions how trademark violations sometimes happen with authors of fan fiction.
- 01:16:20 – The “Free to Use” attribution on YouTube is shown. Thomas indicates that it is unclear whether that means one can take that content and put it on other platforms. Thomas reminds the viewers that it is best to consult with an attorney prior to production than after the fact.
- 01:19:05 – Don recommends that everyone purchase The Pocket Lawyer for Filmmakers. Thomas says he wishes he had the book when he was a young filmmaker. This author concurs with Don and Thomas, appreciates their insight, and looks forward to the next edition of the book.
THIS PRESENTATION HAS BEEN PREPARED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE OR A LEGAL OPINION. PLEASE BE AWARE THAT QUESTIONS YOU RAISE DURING THE WORKSHOP ARE NOT CONFIDENTIAL. ONLY YOUR ATTORNEY CAN ADVISE YOU WHICH LAWS ARE APPLICABLE TO YOUR SPECIFIC CASE AND SITUATION. WHILE THE PRESENTER HAS USED REASONABLE EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION, THE PRESENTER MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF THE CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERROR OR OMISSION IN THE CONTENT. THIS WEBINAR IS PRESENTED ON AN “AS IS” BASIS.