What's Legal

Mark Levy
January 2007

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As video producers, we're often gifted with an intimate look at people, places and events in the world around us... but we're surrounded by legal time-bombs waiting to blow our video apart.

Your life as a producer is not always easy. In addition to dealing with myriad creative and technical issues, you have to try not to be sued and not be arrested just trying to perform your job. (See Josh Wolfe sidebar.)

Creating videos under the law is all about trade-offs and compromises. As a lawyer, I am often called upon to weigh the rights of creators, such as movie makers and news reporters, against the rights of private individuals. Although you live in a free country and have the right to say almost anything about any subject, you still have limitations on those free speech rights. The public's right to know must be balanced against private citizens' right of privacy. You cannot infringe on the copyright and privacy rights of others.

When it comes to making videos, perhaps the simplest law to be aware of is the Copyright Act (Title 17 of the United States Code), which is a federal statute, applying to people in all states. In fact, some of the Act applies to people in other countries, as well. Our copyright laws are based on the U.S. Constitution (Art. 1, Section 8, Clause 8), written long before camcorders were invented. As a matter of fact, the Constitution became effective in 1789, before photocopiers, computers, cell phone cameras, videotape and DVDs. But copyright laws are updated from time to time and now cover all of the technology you are likely to use.

Simply stated and without an agreement to the contrary, a person who creates an original work is automatically given the exclusive right to:

• reproduce the copyrighted work in copies or phonorecords. (Some of this terminology was last updated in 1905... that's right, this update was more than 100 years ago.)
• prepare derivative works (i.e., works that modify and are based upon the copyrighted work.)
• distribute copies of the copyrighted work to the public by sale or rental.
• perform the copyrighted work publicly.
• display the copyrighted work publicly, in the case of individual images of a motion picture.
• perform the copyrighted work publicly by means of a digital audio transmission, in the case of sound recordings.

As used in the Copyright Act, what does "exclusive" mean? In this context, it means the creator of the work has a negative right: the right to exclude others from performing these activities. If you decide to use someone else's music or sound effects or still images or film or video moving images without permission, you can be subject to a lawsuit or, when the infringement is willful, even criminal charges.

What to Do?


The absolute best solution to the copyright quandary is to create everything yourself - shoot original video, add original sound effects, and compose and perform your own music. Unfortunately, for most of us, this is easier said than done. Alternatively, you may hire someone to do at least some of this work. In that case, if the creator is an employee, the work would be a "work made for hire," as defined in the copyright statute: a work prepared by an employee within the scope of his or her employment, or a work specially ordered or commissioned for use as a part of a motion picture or other audiovisual work. Be sure you have the creator or performer give you a written, signed statement that assigns the copyright to you or, at the least, licenses you to use the work in your production.

In the case of music, as an example, if you want to use someone else's work, you may have to obtain permission from the copyright holders: the composer, the publisher, the arranger, and the performer. Knowing whom to approach for permission and how to do it is often bewildering. Unfortunately, there is no simple solution to the problem. Requesting permission to use commercial sound recordings can be time-consuming, expensive and frustrating. Hollywood producers, for example, can easily pay thousands of dollars to obtain the rights to a released song. Nevertheless, if you are intent on using another person's material, get permission in writing to do that. That way, you may never have to see the inside of a courtroom.

Another popular alternative is to use royalty-free music that is available from a number of suppliers and conveniently categorized with headings, such as Contemporary, Classical, Corporate or Industrial, Rock, Popular, etc. Once you obtain a license to use the library of music, you can reuse it as many times as you like for most any purpose.

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