The Internet is merely a medium for distributing content; like newspapers, magazines, books, films, radio, television, satellite broadcasts, and DVDs. The difference, of course, is that the Internet has the potential to reach hundreds of millions of viewers immediately and simultaneously. When it comes to the Copyright Act, though, that does not represent a significant difference. Just because it's "public" doesn't mean it's in the public domain. Material distributed online can be protected just as words or photos in a book can be. The list of protectable material under the Copyright Act includes literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic, and sculptural works, including the individual images of a motion picture and, of course, motion pictures and other audiovisual works. For a list of prohibited actions, see Title 17 of the United States Code §106.
No Notice Required
Since the 1976 Copyright Act was enacted, a copyright holder need not even inform you that the content is copyrighted with a copyright notice. All content (i.e., original expressions of ideas fixed in any tangible medium of expression) is now copyright protected upon creation. Therefore, an Internet-savvy video producer would be wise to treat any material he discovers on the Internet as protected by copyright unless he specifically learns otherwise. That goes equally for video productions and for websites advertising video services.
The 1976 Copyright Act states copyright holders need not inform you that the content is copyrighted. All content is protected upon creation.
Beware: sophisticated computer programs can automatically discover your use of unlawfully-obtained content and you may receive threatening letters (or email) from the owners of the photos, music, or videos. It has become more and more common for unwary producers of video productions, designers of websites, and even businesses and manufacturers of consumer products to be “offered” the chance to avoid litigation by paying the copyright holder hundreds and in some cases many thousands of dollars.
What Material may not be Protected
Certain material cannot be protected by copyright, such as facts, single words, titles, or short expressions. That is where trademark law may apply. And certain material is in fact in the public domain, and therefore available for your use without permission, such as material dedicated to the public by the author or material created before 1923 or works published up till 1977 without a copyright notice. Under the fair use clause of the Copyright Act (Title 17 of the United States Code §107), certain material can be used, even though it is protected, without the author’s permission. But you may have to prove that you are using that material only for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Wedding videos, music videos, or dramatic or comedic scenarios or even church projects, for example, generally do not come under this exception to the copyright guidelines. Of course, if you obtain permission to copy someone else’s work, you can do so without fear of violating the copyright law. But do get that permission in writing.
You may have heard that Google, owner of YouTube.com, continues to display material on its site, even if it is under copyright, unless the copyright owner objects. This decision came in part from a viral wedding dance video that became Sony Music's 8th most popular song at one time. This means you can view or play videos that reside on YouTube, but it does not mean you can copy them with impunity. They are not free and residing in the public domain, they are still owned by the copyright holder and that party can still demand that you not copy the video or he may sue you for doing so to the tune of actual damages or up to $150,000 for willful infringement, as per 17 U.S.C. §504. On the other hand, Google requires you to give up certain rights to have your own productions displayed on YouTube. You can read more about that in the article, “YouTube Copyright Rights”.
Easy Legal Work-around
Finally, finding and using music has always been problematic for independent movie makers on a budget. Fortunately, royalty-free music producers offer a variety of music and sound effects that circumvent the temptation to use professional songs and movies in your productions. Also, consider enlisting the help of local college students adept at composing and performing music. You may find that a small amount of effort and funds are all that is required to obtain the perfect sounds you need.
A comprehensive discussion of other copyright topics as they relate to the Internet can be found in the Videomaker article, “Latest Developments in Copyright Law”. Some ways to find public domain content can be found here.
Attorney Mark Levy specializes in intellectual property law. He has won many amateur moviemaking awards.