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Shoot with Caution: Video, the Law and You

Shoot with Caution: Video, the Law and You

Copyright, privacy and permission are important legal principles all videographers should know about. We answer the most common legal questions people have about video and the law.

Maybe you drive fast all the time and haven't had a ticket in years. Maybe you'll never get one. But if your luck runs out and one day you get stopped, excuses like "I didn't know the speed limit" or "I drive like that all the time" won't get you very far with the judge. It's the same with making video. Many people casually use music and video clips without permission. Many people routinely tape other people without their consent. Most of the time there's not a problem. But if there is, ignorance of the law is a weak defense.

How important is it, really, to pay for the rights to the music playing on the stereo in the background at your grandchild's birthday party? The ranger leading a nature walk in a national park probably doesn't mind being taped, so why should you worry about toting a release form? And why not spice-up that tournament footage you shot of the golf pro on the practice tee with a hole or two you recorded from the network broadcast? Many people never think twice about these things, and if their productions are mostly casual affairs--primarily for family and friends--then most will never be considered infringements. But it's like speeding. If your luck runs out, the consequences are potentially significant.

Because you make video, copyright, privacy and permission are very important areas of the law to be aware of. Here is a general overview of some of the most pressing legal questions most videographers will face. The disclaimer, of course, is that this story cannot be construed as formal legal advice, that Videomaker will not be held liable in any instance of a copyright or privacy action resulting from this story, and that Videomaker assumes all our readers will exercise good common sense.

What Is Copyright?
Basic copyright is a simple concept to understand. The creator owns the rights to copy any work that is filmed, taped, written, painted, performed, sung, danced, sculpted, photographed or otherwise committed to some medium in some manner. If you want to use it, you need to get permission from the owner. If someone wants to use your work, he or she needs to get permission from you. Copyright is protection that allows you to benefit from your "intellectual property," which is a fun legal term for all those protected things named above. Things that cannot be copyrighted include names, titles, ideas, short phrases or blank forms, according to Benedict O'Mahoney, a California-based copyright attorney and author of the Copyright Website, an excellent source for general copyright information. Of course, there are plenty of loopholes, gray areas and exemptions to watch out for.

"The advice you always hear is when in doubt, don't use it," O'Mahoney says. "But that's also the most restrictive. People should educate themselves and not be intimidated. They should try to make prudent decisions, but still exercise their rights." If you want to use someone else's work in your production, you can either acquire the rights, or consider whether the use falls under the category of "fair use" or "public domain."

What is Fair Use?
Because of the First Amendment, other people can pretty much express any opinion they want about someone else's protected "intellectual property." This is how art, music and film critics can include extensive mentions of someone else's work without fear of copyright infringement. Fair use also covers journalists conducting the public's business to know about events occurring in the world around them. When fair use is used as a legal defense in a copyright case, it will generally boil down to the weight of these rights being judged against each another.

My right to profit from my work will not stand up against someone else's right to express an opinion about it, even if it damages my ability to profit from the work. Protected fair use includes "criticism, comment, news reporting, teaching, scholarship or research," writes Arnold Lutzker in his textbook, Copyrights and Trademarks for Media Professionals. "While these criteria are deceptively simple, they have been the subject of more copyright litigation than any other limitation in the law," Lutzker says.

If this magazine produces a video about the Worst Videos Ever, for example, and writes that my videos stink and that and no one should ever buy one, I have no recourse, even if the critique has clips or still frames from the work included in it without my permission. Fair use only goes so far, however, and only covers using as much of the work as needed to capture its theme or essence. If the video includes a copy of my entire production with a little voice-over, I could argue the critique goes beyond Fair Use because it reproduces more of the work than is required to capture the essence of its badness.

Parody is a subcategory of Fair Use. If I make fun of a work, then that's considered a critical comment. Pop star Michael Jackson couldn't sue comic Weird Al Yankovich for his music video "Eat It," which was a parody of the hit "Beat It." Weird Al probably made a fortune using the music, but because it was parody, Jackson had no legal recourse.

What Qualifies as Public Domain?
Another important copyright concept is Public Domain. Copyright is not eternal. Because it exists to protect the owner's rights to collect earnings from the work, once the owner dies or otherwise relinquishes the rights, the work reverts to the public domain. A Mozart concerto isn't copyrighted; a 1995 recorded performance of the concerto is; and a 1975 recorded performance might or might not be. The example illustrates a common problem with public domain. It can be either very easy or exceptionally difficult to determine whether a work belongs to the public domain, says copyright attorney O'Mahoney.

"The caveat is extensive, but it can be difficult to search through the U.S. Copyright Office to determine if a copyright exists," he explains. "You may have to find out when somebody died, when a work was created, and when it was published." Even then, it can be murky, O'Mahoney says. Copyright law changed in 1978, which makes it even more complicated.

"If it's more than 75-years-old, then you are probably okay," O'Mahoney adds. He suggests a public domain aggregator as a relatively cheap and easy way to find a public domain soundtrack, image or video clip to fit your particular need (see sidebar, page 74).

When Should I Worry?
If you never make any money off your video productions, and distribute them narrowly to friends or family, then you will probably never have a copyright problem, no matter how blatant the infringement. This is not an endorsement to rip something off, but realize that enforced copyright infringement action is almost always monetary in nature. If there's no money, then there's little chance there'll be a lawsuit. There might be a "cease and desist" letter issued by a subject's attorney to keep you from using or distributing it any further, but most copyright cases that have gone to court and resulted in damages have involved large productions and deep pockets.

How Do I Get Rights for Music?
People who make money producing videos should usually be most concerned about music copyright violations. Music has some of the most aggressive and organized policing organizations in the form of ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music, Inc), SESAC (Society of European Songwriters, Authors and Composers) and the NMPA (National Music Publishers' Association, Inc.), which operates the Harry Fox Agency. Videographers are typically interested in the rights to use music as a soundtrack to a video. These are called "synchronization" rights. Each of these organizations handles rights or maintains publisher contact information for hundreds of thousands of works. They will either negotiate the rights on behalf of the artists they represent, or more commonly list the specific publisher who will negotiate the rights. Rights packages range from the relatively cheap and easy to obtain to the extremely elaborate and expensive. A well-known rock classic might be cheap to obtain for a person producing a high-school yearbook video, but exorbitant for a car company using it in advertising for its latest line of luxury sedans.

It's also important to discern a performance of the music from the music itself, which are two other sets of rights. Using someone's recording of a song is different from recording the song yourself and using that performance in your work. Both require you license the rights, but the cost and the organization granting the license will typically be different. A phone call or visit to the various Web sites of rights societies will help you get what you need (see sidebar). Each has an extensive online database of titles, performers and studios, along with contact information and forms you need to attain the appropriate rights. Questions to know the answers to include type of video, length, number of copies made, distributor, estimated number to be sold, etc.

What is Privacy?
Another important legal concept to be aware of is privacy. Private people have a right to maintain their own affairs outside public scrutiny. Prying into those affairs with a video camera is dicey legal ground. Public figures have considerably less right to privacy, at least while they are in the public eye, so they are safer quarry from a legal sense (although this doesn't apply to the ethics of the situation). Generally speaking, anything that happens in public is fair game for videographers.
Related to privacy is using someone's likeness. Although you cannot copyright your face (even if it is a work of art) it is yours and you do have some control over how it is portrayed or used. You cannot use someone else's face or likeness in a commercial venture without permission. If a person's face appears incidentally in a video shoot that occurs in a public place, it is an accepted use. This is why you don't need to get permission from everyone who appears in a shot you take at an event in a public place, but you do need release forms from your main models. "Incidental use" is different from "commercial use" in the eyes of copyright and privacy law. The safest way to avoid a privacy conflict is to get model release forms from the people who are the prominent subjects in your video (unless it's news footage, in which case it probably falls under Fair Use). A model release form clearly spells out what you intend to do with the image of the person you are shooting, along with whatever compensation you are agreeing to pay, if any.

What About Shooting in Public?
If, for example, I'm standing on the sidewalk near a hospital shooting video of a passing ambulance for a video I'm making, I am in a public place and I am entitled to shoot it. If, on the other hand, I zoom in on the face of the victim being removed from the ambulance, even if I'm standing on a public sidewalk, that's a violation of privacy unless I get a model release form.

Although you can tape relatively freely in public, as soon as you enter private property, restrictions may apply. It should be obvious that you can't go into someone's back yard and tape them in their home without permission. Sporting events and theater or music productions are good examples where confusion can arise. Check with the administration department of the school, theater or arena for guidelines.

Privacy also covers exposing intimate details of someone's personal life without his or her permission. If you reveal private facts in a video production, you could be held liable. If the facts are false and damaging, you could be sued for libel.

When Do I Need Permission?
Permission for copyright comes in the form of a licensing agreement, and with permission comes the question of financial compensation. The price of the rights typically varies with how extensive the use will be, the scope of distribution and whether it's being used in a commercial or personal endeavor. Often, a limited personal use that doesn't offend the owner will be free or require at most a nominal charge. Other times, the license could be expensive or not forthcoming at all. When requesting permission, be prepared to describe the nature and purpose of the use, the extent of the use and the distribution. When you are approached for a license for your work, at the very least find out this information and require that the requestor give you due credit for your work.

Common Sense
Because copyright law is complex and ever changing, an attorney is the only place to get real legal advice. Copyright lawyers are typically listed under patent attorneys in the phone book. This shouldn't be necessary, though, as long as you use good common sense when shooting and editing. Assert your right to make video, but don't crib other peoples' work or invade their privacy. Shoot often but shoot with caution.

[Sidebar: Sources for Licensing Rights]

  • ASCAP (www.ascap.com)
  • BMI (www.bmi.com)
  • SESAC (www.sesac.com)
  • Harry Fox Agency (www.nmpa.org)
  • Miscellaneous public domain sounds, text and images (www.twain.com/info/Sounds/sounder.html)

    General Copyright Information:

  • The Copyright Website (www.benedict.com)
  • U.S. Copyright Office (lcweb.loc.gov/copyright/)

    [Sidebar: Things that cannot be copyrighted]

  • Ideas
  • Expressions
  • Titles
  • Faces

    [Sidebar: Things that can be copyrighted]

  • Videos
  • Performed music, plays, other performances
  • Sheet music
  • Recorded music
  • Films
  • Paintings, sculptures, other works of art
  • Written works
  • Photographs
  • Any other "intellectual property" committed to a physical or virtual medium

    [Sidebar: You typically do need permission to shoot if:]

  • You are shooting on private property.
  • You are shooting in a controlled area like a museum, restaurant, theater or sports arena.
  • You are causing an impact to the normal flow of traffic, disrupting pedestrians or creating any other sort of public "nuisance."
  • You are deliberately using a person in a production who is a primary subject of any scene in the production.

    [Sidebar: You typically don't need permission if:]

  • You are shooting in a public place.
  • People or objects appear incidentally in the shot.
  • The use falls under the Fair Use or Public Domain caveats.

    [Sidebar: Handy solutions:]

  • Keep model release forms on hand (see Sep '98 Videomaker, page 140).
  • Plan ahead if you need permission from a municipality.
  • Look for cheap, creative ways around your need for music, such as public domain works, music libraries or original compositions.
  • Play it safe, but don't be paranoid.

    [Sidebar: Copyright length]
    How long a copyright lasts depends in large part on when the work in question was created. Depending on whether the work was created before or after January 1, 1978 could have substantial effect on the life span of the copyright.

  • Pre-1978 (Published work)
    The copyright expires 75 years from the date of publication (if the copyright was renewed).
  • Pre-1978 (Created, but not published)
    The copyright will expire on Dec. 31, 2002.
  • 1978 to present (if copyright is owned by an individual)
    The copyright will last for the life of the author, plus an additional 50 years.
  • 1978 to present (Copyright owned by employer of author)
    The copyright will last 75 years from the date of publication, or 100 years from the date of creation, whichever occurs first.
    --From The Copyright Website by Benedict O'Mahoney
  • Tags:  January 1999
    Jim
    Mikles
    Fri, 01/01/1999 - 12:00am