Mass Media Law (page 3)

Once you have made a lawful video, you may wish to protect it in order to prevent others from copying it or using it without your permission. Under the copyright law of the United States (itself based on a provision of the US Constitution), a copyright is an exclusive right to produce a work, to prepare derivative works, to distribute copies, to perform the work (if appropriate) and to display the work (again, if appropriate). It is effective for the life of the creator plus 50 years. Like a deed which defines real property, the copyright defines intellectual property--your video. And like personal property, you can pass the copyright by will or transfer it by any other legal means to another person or entity. The copyright holder can license the copyrighted work to one or more people or can assign the rights outright for a lump sum or for ongoing royalty payments.

The most important step to take to secure copyright protection of your work is also the simplest: place a copyright notice on it. The one-line notice must include the symbol © or the word "Copyright" or the abbreviation "Copr.", along with your name, as copyright owner, and the year in which the work was first published, in Arabic numbers (e.g. 1996) or Roman numerals (e.g. MCMXCVI). The phrase "All Rights Reserved" placed under the notice is necessary to protect your work in certain foreign countries. Place the copyright notice on the work even before you actually apply for registration.

Be sure to put the notice in a reasonable place in or on the work so that others are likely to see it. You can place it on the videotape cassette label and again in the video itself, so that the audience can view it either at the beginning or at the end of your video.

After you have placed the copyright notice on and in your work, you can register it with the US Copyright Office in Washington, DC. Registration consists of filling out an application form, enclosing a $20 fee and submitting one copy of the work on videotape. The Copyright Office will issue a certificate within approximately three months' time of receiving your application and materials.

You can obtain up to ten application forms and instructions from the Copyright Office by calling their 24-hour hotline phone number: (202) 707-9100. Leave your name, address and type of application form requested (Form "PA" for videos) on the telephone answering machine.

Another issue that arises is your liability for using another's copyrighted work without permission. You can obtain permission from the copyright holder directly (if you know how to find him or her), or through one of the major organizations that handles copyright rights and collects royalty payments. In the music world, there are two major organizations that can facilitate the process by providing you with the music publisher's name and address: the American Society for Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI).

One type of performance is not covered under the copyright law. In other words, you can use someone else's materials--say, for example, someone else's sound recordings, poems or narrative--and this will not be copyright infringement under a particular circumstance spelled out in the copyright law. The performance "must be without any purpose of direct or indirect commercial advantage; and it must be without payment of any fee for the performance to any performers, promoters or organizers; and there must be no direct or indirect admission charge. But if there is such an admission charge, the proceeds, after deduction of reasonable production costs, must be used exclusively for educational, religious or charitable purposes and not for private financial gain." Even if the proceeds are for educational or religious purposes, the copyright owner has the right to veto the performance in advance.

Non-profit exhibition of copyrighted works is not generally unlawful, even if you show the work publicly; and if you don't show the work publicly or for profit (for example, if you show it only to a reasonably small circle of your family and your social acquaintances), there is little danger of anyone suing you. In the case of broadcast or cable television, of course, any exhibition of your work is generally for profit--your profit or the profit of the TV station. Thus, TV use of someone else's copyrighted material in your work without permission of the copyright holder is unlawful.

When else might you use someone else's copyrighted work without his or her permission? You may have heard of the fair use doctrine or exclusion. Fair use is "a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright."

Courts have often said that the line between fair use and copyright infringement depends on the facts in each case. This makes the fair use doctrine the most troublesome in the entire law of copyright.

The copyright law fails to define the outer limits of fair use explicitly, but the statute leaves the door open for courts to take a reasonable approach in the more difficult fair use cases. How do the courts determine whether your use of someone else's copyrighted material is fair use? Courts use a balancing test to determine whether the public's interest in dissemination of information outweighs the exclusive right of the copyright holder.

The first thing a court determines is the purpose or character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes. Courts also consider the amount and substantiality of the portion of the work used, in relation to the copyrighted work as a whole. Finally, courts try to determine the effect of the use upon the potential market for the copyrighted work.

The facts of each case are, of course, different, as is the interpretation of those facts by each court. What one court in one case finds to be substantial similarity may not hold up in another court or another case. At least one principle seems to control courts' decisions: when an adapted work includes dialogue or narration that is identical to the author's, copyright infringement occurs.

To summarize: if there is a heavy reliance on any one source, an amateur may have an exposure of copyright infringement when the alleged infringing work seeks a place in the same market as that source.

To enjoy the greatest freedom in making videos, be sure you are not invading or infringing the rights of others. And if there is a possibility of commercializing your work, be sure to register it with the US Copyright Office.

Finally, when in doubt about your rights or obligations, consult a lawyer. Attorneys who specialize in the field of intellectual property are usually listed under "Patent Attorneys" in the Yellow Pages.

As for the people who appear in your video, here are the factors to consider: are they recognizable public figures participating in a newsworthy event? If they are recognizable private citizens who are not part of the newsworthy event, you should exercise caution.

The guidelines presented above apply to all situations, not just to disasters. As a videomaker, you have a right--a limited right--to tape people, places and things, but you will need permission to do so unless the subjects are public or, at least temporarily, newsworthy.

One last word of advice. If you want to include a person's image, voice, property or possessions, introduce yourself, if at all possible, and ask the person to sign a release. (Keep a supply of releases in your camera bag.) It may well be worth a dollar to stay out of court. You can trust me on this one &8212; I'm a lawyer.

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