That diminutive encircled c symbol can be a powerful force for you – friendly or frustrating. The people who create copyrighted works that you may want to use in your own productions include performers, composers, movie makers, still photographers, writers and artists. To understand the limits of your rights and the rights of others, you should know at least a bit about the copyright law.
What is a Copyright?
United States Copyright Law has its origins in the Constitution, which secures exclusive rights to authors for their writings for a limited time. People who create works that we all enjoy and appreciate should be compensated for their talent and hard work. The copyright law, officially known as the Copyright Act, ensures that we all do the right thing: respect the effort, as well as the intellectual property, of others.
The copyright law has been updated over the years to reflect new technology. The updates or revisions to the law expand the definition of “authors” and "writings," among other things. Nowadays, an "author" can still be a writer, but an author can also be the person who creates works that our Founding Fathers could never have envisioned. Here are just a few developments that didn’t exist in 1790, when the Copyright Office was established: photographs, sound recordings (from Edison wax cylinders to vinyl LPs to 8-track tapes to audio cassettes to CDs to MP3s), movies, soundtracks, software, and, of course, video productions on tape, laser disc, DVD or streaming Internet video.
Over the years, Congress also expanded the term of copyright enforceability. At the turn of the last century, you could secure copyright protection for 28 years and you could renew it for another 28 years. After that, your work entered the public domain, so anyone could copy or modify your work without your permission. As of 1978, however, law protects your work for 70 years after your demise. Until recently, the term was actually your life plus 50 years, but when Sonny Bono served in the House of Representatives, he helped extend copyright protection for “I Got You Babe” (as well as all other works, of course) for an additional 20 years.
Another major and relatively recent (1978) development in the copyright law provides copyright protection for any completed work. The copyright notice ( + your name + year of creation) was required on all works and it is still recommended, but not mandatory. You are also strongly encouraged to register your work in the Copyright Office, but that action is also not required, unless you intend to enforce your rights in court. For information about copyright registration, access the Library of Congress and the Copyright Office Web site www.lcweb.loc.gov/copyright or contact an intellectual property attorney.
A copyright is an exclusive right. That means you have the right to exclude all others from copying your work or from making works derived from your work. The other side of the coin, of course, is that you do not have the right to copy another person’s work (music, screenplay, images) without permission, unless the work is in the public domain.
A good, conservative rule of thumb is that you should assume that a work is protected by copyright if it had been created after 1922, as all works created before that are now in the public domain. For example, older photographs, paintings, books and sheet music are available for your use without permission from the author. Copyright law protects a musical performance recorded after 1922, even if the score was composed before 1922. You can contact the U.S. Copyright Office to find registered material. Copyright Office personnel can conduct a search, for a modest fee.
What do you do if you wish to use a copyrighted work? Producing a wedding video is one typical situation. Frequently, the couple may want you to include copyrighted material, often a favorite song performed by a favorite artist. As the producer, you can be liable for the copyright infringement. In fact, the copyright owner can bring a legal action against you, personally. If you do decide to go ahead anyway, you may need an agreement with your client (who should be wealthy enough to survive such a lawsuit) to indemnify you for a copyright infringement action. Clients would be foolish to enter into such an agreement, and you would be foolish to obey the client’s instructions if you don’t get indemnification. Getting indemnity does not free you from responsibility or liability, however.
The Risk of Infringement
The law is specific about what constitutes copyright infringement. Except for unusual and egregious situations, the government doesn’t normally police and enforce copyright law. It is up to the copyright holder to find copyright violations and bring a lawsuit against the infringers. Songwriters routinely use certain societies or guilds, such as ASCAP and BMI, to find violations. These organizations send undercover representatives to random nightclubs, restaurants and catering halls to police their members’ works. If the establishment does not have a license to play or broadcast the musical work, it may be fined or it may become the defendant in a lawsuit. As a videographer, you may need to get copyright permission even for live or recorded music played at an event you videotape. Ask the musicians or disc jockeys whether they obtained a license to play such music at the event.
If found guilty of copyright infringement, under the criminal portion of the law, or liable, under the civil portion, you may face a penalty of five years imprisonment and up to $250,000 in damages. Willful infringement is clearly more serious than unintentional infringement. Once again, as video producers, even if the law weren’t so serious, we have an ethical duty to respect people who create original works. Stealing another artist’s work is tantamount to stealing their car, their instruments and, literally, their livelihood.
What is the likelihood of being caught using someone else’s copyrighted work? Generally, not very high. In the real world, professional wedding videographers often use copyrighted music without permission. One important aspect of prosecution is the demonstration of real commercial harm to the copyright owner as a result of the infringement, which is likely to be miniscule in the case of a wedding tape distributed to 10-50 people. But every once in a while, someone in the music or publishing or movie industry decides to make an example out of a low profile person or non-profit organization. Don’t let it happen to you.
Cheap and Easy
You may find that getting copyright permission is cheaper and easier than you’d thought. In fact, it might be as simple as asking for it (in writing). Explain why you need the material and how you will be using it. (See the Sample Request sidebar.) The difficulty arises where the respective rights of a bewildering array of people and organizations overlap. For example, in order to obtain permission to use all or part of a top 40 record, you may have to contact the composer, the performer, the publisher, or the professional association(s) representing any or all of them. You may need performance rights, publishing rights, reproduction rights, mechanical rights (for copying and using audio/visual works), film rights, electronic rights (for use on computers or the Internet), translation rights, adaptation rights for altering the work or making instrumental arrangements, or even broadcast rights.
Of course, you may obtain the right to use the work, but only if you pay a substantial fee. In general, unless you are making a major motion picture, attempting to obtain a license to use copyrighted materials might not be worth the effort.
Do the Right Thing
Creating your video productions is stressful enough without having to worry about copyright infringement and the penalties associated with it. Choose to do the right thing: a) avoid potential problems by using works that are out of copyright or create original works by yourself or with friends and relatives; or b) belly up to the bar and obtain permission from the copyright holder to use the work. It might be less expensive and easier than you think.
Sidebar: Sample Request for Permission to Use Copyrighted Material
Dear [Mr./Ms. Copyright Holder]:
I am producing a 30-minute wedding video for the family of a bride and groom and wish to include in the video your song, “Fools Rush In.” Your song is the bride’s favorite song and has great sentimental meaning for her. I will distribute the video only to a handful of friends and relatives, and will not offer it for sale or broadcast.
I respectfully request permission to use your song or parts of it in my video production, on a non-exclusive, royalty-free basis. If you agree to this request, kindly sign and date the enclosed duplicate of this letter and return it to me in the self-addressed, stamped envelope, also enclosed.
If you have any questions about my use of your song or would like a copy of the finished video, please let me know. My clients and I greatly appreciate your cooperation.
Sincerely, AGREED: __________________________ ________________________ John Smith, video producer Sal Songbird, songwriter Date:_____________________
Sidebar: License to Use Music from Composer/Performer
I, __________ [insert composer’s name], hereby grant a non-exclusive, worldwide, fully paid-up, irrevocable license to __________ [insert video producer’s name] to use my song, [song title]” or portions thereof in his/her video production, entitled, ,” which may be sold, leased, displayed or broadcast by __________ with no further accounting to me.
_____________________ __________ Signature of composer Date