Update April 13, 2006: The final guide is available Here.
I'm in the process of completing my final project for SFSU's Broadcast Electronic Communications Arts department (BECA) -- My assignment is to write a student licensing guide to help students with licensing their school productions.
It's most of the way complete except for a Pros and Cons table that I won't have ready for a few more hours.
A word file with the tracking turned on is available here:
http://video.lisarein.com/sfsu/guide/guide-4-11DFC.doc
A text file:
http://video.lisarein.com/sfsu/guide/guide-4-11-draft.txt
I'm including a text file here and in the "more" section below.
Please make changes directly to the file, or send me an email with suggestions about specific sections - please quote the text so I know what you're referring to.
This isn't about proofreading! This thing's already in pretty good shape. I'm wondering if it makes sense to experts and non-experts alike.
You do not need to be a legal expert to be helpful to me. I'm wondering if this stuff makes sense to newbies too. That's the whole point of this guide.
Please email me a lisa@lisarein.com with your comments and/or edited word file.
thanks!
lisa
BECA Student Licensing Guide - April 2006
By Lisa Rein, lisa@lisarein.com -
This draft has been replaced by the final version located here:
http://video.lisarein.com/sfsu/guide/finalguide4-12.txt
BECA Student Licensing Guide - April 2006
By Lisa Rein, lisa@lisarein.com
Introduction - Some background on copyright basics
Step 1 - Protecting yourself from getting sued.
Step 2 - Choosing a Creative Commons License for your own work.
Summary
The purpose of this guide is two-fold. The first goal is to teach you how to display your own mixed-media BECA productions publicly without fear of legal ramifications. (This will be accomplished by clearing all your content, creating it yourself, or using Creative Commons’ licensed content). The second goal is to teach you how to choose a Creative Commons license for your own productions, so that you may encourage their reuse while still protecting yourself from unauthorized uses.
Introduction - Some background on copyright basics
We're going to be talking specifically about Copyright in this manual. (Patents and trademarks, two other kinds of "intellectual property", have different guidelines and legal precedents.) Copyright protects the creators of artistic works (music, books, video, photography, you name it) from unauthorized use. For students who use copyrighted material in their academic productions, and later decide they'd like to show the work in other forums, using copyrighted material can become a minefield. When a student is just creating “neat stuff” in the classroom, music and video sources are a clear-cut case of “fair use.” However, should one of your productions come out good enough that you'd like to show it, display it, or broadcast it, traditional copyright rules will prohibit you from doing so. This is because public airing of productions containing the copyrighted work of others at film festivals, on television, or even on the Internet requires the explicit permission to the copyright holder in order to avoid legal and financial pitfalls.
The rules seem stricter for broadcast media because anything but a public-access TV show will make you sign a document stating that you have permission from the Copyright holder of every clip used in your production. Without this document, the TV station won't broadcast the content. On the Internet, this barrier of immediate broadcast is removed, but the laws remain the same. "Putting stuff up on the web" is easy to do with little or no effort, however, all of the laws prohibiting the unauthorized use of a Copyright holder's work are still in effect. You are simply publishing and distributing via the Web. Just because the physical act of “distribution” can take place without anyone's permission doesn't mean you won't be held accountable for it afterwards.
Copyright does not apply to the ”ideas” used within a “work”, only to the “work” itself: the article, the book, the movie, etc. Factual elements are not covered. For instance, if I wrote a book on the history of the San Francisco Earthquake, the facts I reported within the book would be in the public domain. So an artist can copyright their version of a historical account, but not the facts contained within that historical account. Likewise, you can reference numerous facts sourcing the original published work without getting any kind of permission. Such is the nature of research.
In order to adequately discuss alternate licensing options effectively, we must first define what "traditional copyright" means. "Traditional Copyright" refers all of the protections and restrictions as set forth in Copyright Law, based on all the numerous Copyright Acts that have been voted in by Congress up to the present. The original length of the Copyright term, set forth in The Copyright Act of 1790 by the Founding Fathers, lasted 14 years and was renewable once for a maximum length of 28 years. After that, the work went into the public domain, so others could use it and benefit from it. This Act also described what has come to be known as "the copyright bargain," in which copyright holders are allowed the exclusive right to make money from their work for this "limited time" of 14 or 28 years, after which the work went into the Public Domain for everyone to benefit from.
Unfortunately, the language used in the Constitution has been interpreted by some as implying that Congress has the power to determine what "limited" means. As a result, during the last 50 years, “limited” has been interpreted -and upheld by the Supreme Court in Eldred vs. Ashcroft in 2003 - to mean that Congress has the power to extend the length of this term. As a result, the Copyright term has been extended by Congress 11 times in the past 40 years: now the term runs 70 years past the death of the work’s creator or 95 years past the date of publication for a “work for hire"(where the creator has relinquished their copyright as part of the deal.)
What kinds of uses are not permitted based on preserving the rights of the Copyright holder?
If your production contains material covered under copyright, and you have not received the explicit permission of the copyright holder, you are not allowed to redistribute your production in any way to the public. It really limits your options.
As far as "reuse" goes, here are some examples. An individual can't make a copy of someone else's book and sell it. An individual can't take a book and make a movie out of it without the explicit permission of the copyright holder. In that case, someone might want to license the film rights. (A more common practice these days is to purchase an option to license the film rights at a future date for another, much larger sum.) In the case of reusing a photo that a person found on someone else's website, the situation gets complicated quickly. Just because the photo was found on a website doesn't mean that the website had proper permission to use it. Contacting the webmaster of the site doesn't always help locate the source of the media or the proper Copyright holder.
What are the differences between making a production for school, in which you can use or show copyrighted material to a school audience, and putting it on the Internet?
Well, there are “fair-use” provisions that allow you to use what you want within an academic environment. You are, in fact, violating the copyright holders' rights by using it without permission, but since it's only for a finite group of people in your classroom and you are not using the work for financial gain, such uses generally fall under “fair-use.” However, if the “work” is put on the Internet, this constitutes “public distribution.” When you place something on the Web, you are in effect publishing it and redistributing it. To a publisher, it seems as if you had bought a book at B. Dalton, made a large number of copies and gave them away for free.
Fair Use is too complicated and “gray” an area to cover in great detail, but the educational provisions that are specified by law are pretty simple. If you are commenting on a “work” in a non-commercial fashion, “fair use” allows you to republish parts of another work in order to make a scholarly or editorial point. The educational provisions of Title 17, Section 107 of the Copyright Act of 1976 are pretty straight forward, allowing people to reproduce "part or all of a work for purposes, such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research..." This is why you can always use whatever source material you need to for your class assignments.
Copyright Infringement
"Infringement" is violating a copyright-owner's exclusive rights. The law does not require that the infringer be aware they are doing so. Harm does not need to be proven. As an artist deciding whether or not to include pieces from the works of others, you want to make sure you're not infringing on any one else's rights, so you don't get sued.
What happens when you put something up on the Internet without permission and the Copyright holder finds out?
They can sue you for a lot of money, and make you destroy any copies of your work that contains the clip. The Copyright holder can demand that it be taken down pending investigation and, often, this will be done before you can defend yourself. Defending your “use” will happen after the fact. According to the DMCA, a Copyright holder need only have a "good faith belief" that his rights are being infringed to issue and "cease and desist" letter (a "c and d" or "takedown notice"). Even after you take the material down, you can still be charged anywhere from $5000 to $50,000 per violation. Defending yourself costs money, so having any sort of Copyright conflict at all can be expensive.
Step 1 - Protecting yourself from getting sued
The hard routes: Generating all original content or only showing other’s content in the classroom.
The "safest", albeit impractical, path to take is to create all of the pieces used in your “work” yourself. For example, when creating a video production, you’ll need to allow much more time to complete your production if you're also going to create an original soundtrack for it. You also need to be musically inclined, own your own production equipment, or have a lot of time and money and rent it. This scenario becomes quickly unrealistic.
If you are absolutely sure the video project is just a class assignment, and that you have no desire to put it on the Internet, play it on a cable access show, or submit it to a film festival or contest then, by all means, use what you want from whatever source you like.
As an artist and a producer, you may need to examine your readiness to lock up your creation in a vault and forget about it after it's done. Artists often don’t know for sure what they’re going to do with works once they're completed. At the very least, they may want to store a copy of it on their web-based portfolio. (Soon, all producers of media will be expected to have one of these. Already, at the time of this writing, a producer is definitely taken less seriously if they do not have any sort of web presence.)
Clear All Copyrighted Content or Use Creative Commons’ Licensed Content
So the first harsh, but easy to remember, rule of Copyright is don't use anything you find on the Internet or anywhere else without the explicit permission of the Copyright holder. Now this is easier said than done. It's sometimes very hard to reach the Copyright holder (a person or a corporate entity like a publishing house) and get permission to use the piece of music, art, journalism, etc. which the artist wants for their project. It’s especially frustrating when the copyrighted material is precisely what the artist needs to create a particular point or convey a particular message.
This situation creates two extreme responses for an individual wanting to use copyrighted material. The first response is for the individual to ask all Copyright holders to use their work (which might take months or years). The second response is for the individual to use whatever Copyrighted material they need and hope no one will object. This behavior might get the individual anything from a nasty “cease and desist” letter to a full-fledged lawsuit.
There is now a type of user “license” which attempts to circumnavigate the negative options often involved with traditional Copyright. With Creative Commons licenses, artists can assert, prior to usage of their material that, while retaining their existing rights as a copyright holder, they are also making their media available for certain educational or non-commercial uses.
Finding Creative Commons Licensed Content To Use
Playing it safe used to mean having less content to choose from. But now there are libraries of Creative Commons content that provide lots of nice alternatives for everything from music to backgrounds to stock photos to collage photography. When you use works licensed using one of their six basic licenses, you aren't restricted about what you can do with it when you're done. For a Creative Commons search engine, links to Creative Commons search features on Google and Yahoo, and links to over 20 libraries of Creative Commons content, visit:
http://www.creativecommons.org/find/
Step 2 - Choosing a Creative Commons License for your own work
For the purposes of this guide, we are going to assume that you either created the “media” yourself, obtained explicit permission from any Copyright holders to use all the media involved, or created your presentation using Creative Commons Licensed material that is pre-authorized for reuse.
Traditional Copyright protects the artist from abuse to such an extent that other students and artists may we be "afraid" to use their work for their soundtrack. If an artist *wants* to be used in non-commercial productions, they would use a CC license that allows those kinds of works without obtaining additional written permission. Eliminating this step saves hours of labor in the new artist’s production process. The new artist doesn’t have to go hunting around to obtain permission for the CC licensed work used within their own “work”, and other artist’s need not contact them to use their work.
When you choose a Creative Commons license or decide to just keep your media under traditional Copyright, what you are in effect doing is specifying rules for reuse; for example using music in a soundtrack for another’s video work, or sampling it within another song, etc. Your work is still completely protected under all existing Copyright, you are only loosening the reins on the specific uses outlined within whatever license you choose.
Note: Performing "covers" of songs, which is regulated under a compulsory license, demands payment but cannot disallow use. Sampling a song, on the other hand, and creating another musical work from it becomes a derivative work, which requires explicit permission from the Copyright holder of the sample.
Creative Commons’ Licenses in a Nutshell: One Given and Three Options
Here are some questions you can ask yourself when choosing a license for your productions. When deciding on a license, you are basically answering the question: "After someone downloads my media from the Internet into their computer to play it, what else can they do with it?"
All Creative Commons Licenses can be summarized as basically one given (attribution) and three options, for which you must decide "yes" or "no" (commercial use, derivatives, share-alike).
Attribution is a minimum requirement of all Creative Commons Licenses. They have to give you Attribution for using the work. That means they have to include your name in the credits and, preferably, include a link back to the page about your work.
Three Options:
1) Commercial use. - Can they download your work and resell it?
2) Derivative works - Can they remix it, alter it, and republish it?
3) If they are allowed to make derivative works, must those derivative works be licensed under the same CC license as yours?
All Creative Commons licenses require attribution. After that, you have two options: allowing/disallowing commercial usage and allowing/disallowing derivative works. Furthermore, if you do allow your work to be remixed to create another "derivative work," you may optionally require that such works be released under the same license as yours. This way, remixes of your work are also available to remix, rather than being "locked up" under another license. This "share-alike" provision embodies the true spirit of Creative Commons: creating a voluntary Public Domain in response to the ongoing loss of the "real" Public Domain due to the perpetual length of the copyright term. However, many people don't want to place any restrictions on reuse, fearing that such restrictions may serve as a deterrent to usage. (See Pros and Cons of CC licenses table.)
Creative Commons’ licenses work backwards from existing copyright to enable you to make exceptions to the normal copyright rule, and allow the uses you want without losing any of the "automatic" protections of "traditional copyright." Every license allows the work to be copied and distributed in any format, displayed or performed publicly, or webcast (a "digital public performance"). Every license applies world-wide and is irrevocable. If that "irrevocable" part sounds scary, fear not. Another feature of Creative Commons’ licenses is that they are non-exclusive. So putting your work out under a CC license can never interfere with anything else you choose to do with that work in the future.
The most restrictive license, and perhaps the "safest" to use until you have more time to understand the different options, is the "Attribution, Non-commercial, No-derivs" license. This license requires attribution, as do all Creative Commons licenses, allows usage in only non-commercial environments (schools, non-profits, students, and, potentially, a person's personal website), and requires that the work be included in its entirety. This doesn't mean that you have to use the whole song, but that whatever part you use is used “verbatim”, and is not altered or remixed to create another "derivative" work.
You can also use a Creative Commons License to put your work straight into the Public Domain. In doing so, you relinquish your copyright, and no one is required to give you attribution or acknowledgement of any kind. Placing a work directly into the Public Domain is more of a “statement” than anything else. It makes people take notice and see that you are serious about trying to preserve culture, art, and history. I wouldn't recommend doing anything like that until you have a clear understanding of everything discussed in this guide. You are guaranteed that more people will use your work if you place it into the Public Domain. That much is certain. It will take more time to analyze the effects of going direct to Public Domain before we can expand on the pros and cons of doing so.
All Rights Reserved Traditional Copyright
Some Rights Reserved Creative Commons
No Rights Reserved Public Domain
See the attached pros and cons table for a quick breakdown of the six main Creative Commons licenses. A version of this table with a direct link to a page where you can grab the HTML code needed to implement each license is available here:
http://www.lisarein.com/sfsu/creativecommons/prosandcons.html
Feel free to email me with any questions you may have at lisa@lisarein.com.
Good luck!
