by Tifanie Jodeh, Entertainment Law Partners
reprinted with permission of the author
As digital signage emerges further into the mainstream marketplace, content providers find it necessary to retain value by displaying content which captures attention, educates, promotes, and entertains and, most of all, generates revenue.
It is likely that most everyone reading this has taken a magazine to the scanner and made a copy of an image or article. On the same level, it could be assumed that a select number of content providers may have incorporated a film clip or piece of music into a produced piece which was displayed to the public.
The issue is whether such use was a violation of copyright law.
Copyright law is protective of works such as photographs, music compositions, films, sculptures, news articles and paintings. These forms of creative, expressive media are protected as any “original work of authorship fixed in any tangible medium of expression.” (Under the Copyright Act).
Many content creators are confused about the fair use doctrine and whether they need permission to borrow from the owners of copyrighted works. “Fair use” allows conditions under which content creators can use material that is copyrighted by someone else without paying royalties or needing to obtain a license. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship.
Such examples of uses include news, fair comment and criticism, parody, reporting, teaching, scholarship and research. Filmmakers, artists and writers benefit from the fact that the copyright law does not exactly specify how to apply fair use. Creative needs are considered and whether the use is “fair” according to a “rule of reason”.
Courts employ a four part test (set out in the Copyright Act) and ask two key questions:
- Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original.
- Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use.
If the answer to both questions is in the affirmative, a court is likely to find a fair use.
For example, if a reporter quotes a paragraph from an article you wrote online and that reporter compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without the need to obtain your permission.
The following are some common questions with regard to usage of content:
- What if the usage had been only to advertise the network?
- Can I use of segment from a music video without obtaining permission?
- Can I copy an excerpt from an article without obtaining permission?
- What if I am planning on getting permission after the content is displayed?
- If I am not making money from the content, do I violate the copyright act?
The answer to most of these questions is: It depends on the use of the content.
Be sure to keep in mind that fair use is a very fact-sensitive defense to a copyright claim. It is sometimes difficult for producers, writers and content creators to determine beforehand whether a particular use is in fact a fair use. For this reason, it is a good idea to seek out a license before engaging in a use that might be a “maybe” fair use.
In conclusion, digital signage content providers, whether agencies or individuals, should consider the following before incorporating material into their content:
- Don’t assume you have permission to use copyrighted material. Be sure to get the permission in writing.
- If you did not create the content yourself then assume that it is copyrighted and you should obtain permission for its use.
- If you think you may need a license to use the content, then you probably do.
- Assume and prepare for negotiating license fees or obtaining permission to use copyrighted material.
- Have a second choice lined up in the event that you do not obtain permission from your first choice.
You will most likely be required to provide a credit for the use of the copyrighted content (such as: “footage provided by XYZ Network”).
If you are in doubt that you need permission to use a certain clip, image, quote, or song, then stay on the safe side and obtain permission. You should retain an attorney to help you through this process.
For more information, visit the copyright office at http://www.copyright.gov/.
Tifanie Jodeh is Partner at Entertainment Law Partners, LLP
dedicated to corporate, business and entertainment affairs.
You may contact her atTifanie@entlawpartners.com.
[Tifanie Jodeh grants column recipients permission to
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DISCLAIMER: Readers should consult with a lawyer
before solely relying on any information contained herein.