The Seven Deadly Sins of Copyright
As most filmmakers (and other content creators) know, the creative work that comprises the film is protected by copyright. What is often overlooked is that copyrights figure into many other aspects of the film as well. The musical compositions incorporated into the film are often separately copyrighted. Works of art and architecture that appear in the background or as part of set or scene are often copyrighted. Lastly, a clear chain of title to the copyrighted elements in a film is absolutely necessary to secure distribution or theatrical release. This articles lists seven common misconceptions and mistakes and ways to avoid them.
- Failure to Register. This is often the most simple and yet most costly if overlooked sin of copyright owners. Yes, your work is copyrighted from the moment it is “fixed in a tangible medium of expression.” But if your copyrighted work is infringed before it is registered, your are precluding yourself from two very powerful weapons in copyright enforcement: (a) statutory damages (which obviates the need to prove actual damages) and (b) attorney’s fees.
- Failure to Enforce. Often styled as complacency or laziness, this is a failure to act to enforce your copyrights when necessary. In the law it’s called laches. A failure to enforce our rights in a timely manner will lead to a loss of them.
- Failure to properly invoke DMCA. The Digital Millennium Copyright Act has specific requirements to properly invoke the notice and take-down provisions. An effective DMCA Notice will notify a web site operator/hosting provider of particular facts in a legally admissible document signed under oath. An effective DMCA Notice must contain the information set forth in the statute.
- Failure to Police. It is an unfortunate fact that computing technology has made it easier than ever to access, copy and distribute the copyrighted content of others. However, there is no agency that exists that that has any obligation to monitor or provide notice of such activities. The responsibility lies squarely with the copyright owner. Therefore you have an obligation to periodically assess whether your copyrights are registered and whether anyone has reproduced or distributed them without your permission.
- Failure to research ownership. Obviously one may use any original material one creates: graphics, audio, text, or video. However, if you didn’t create something, then someone else did. If the copyright has not expired, then permission must be sought for the right to use that item from the copyright owner. Practice Tip: The copyright office now has a searchable database accessible through a web browser for preliminary searches for works registered and documents recorded by the U.S. Copyright Office since January 1, 1978.
- Failure to consider fair use. One of the more important limitations to the exclusive rights granted a copyright owner is the doctrine of “fair use.” Although not mentioned in previous copyright law, the doctrine has developed through judge-made case law and is now codified in section 107 of the copyright law. The law contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: (a) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (b) the nature of the copyrighted work; (c) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work. The determination of whether any give use is “fair” is dependant entirely on the facts and circumstances of each case. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. Recently, in the case of Lenz v. Universal Music Group, the judge ruled that fair use must be taken into account before take down notices are issued by copyright holders.
- Failure to give credit where credit’s due. This means claiming credit for work that is not yours or claiming copyright in ideas, facts figures or content that is simply not protectable. This weakens your claims for protection of material that is protectable. If your content makes use of the copyrighted material of others, get permission, cite the source or make sure that you are engaging in a “Fair Use.”
About The Author
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at Adler & Franczyk, LLC, a boutique intellectual property law firm based in Chicago, Illinois. With over twelve years of legal experience, Mr. Adler created the firm with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.
Mr. Adler has an extensive private-practice and in-house background counseling clients on corporate and intellectual property law, including corporation and LLC creation and finance, contract interpretation, drafting, negotiation and enforcement as well as copyright and trademark registration and enforcement. Mr. Adler also specializes in advising artistic talent and creative professionals in the arts, entertainment, media and sports industries.
Outside the practice of law, Mr. Adler created and taught an undergraduate course on E-Business in the Arts, Entertainment & Media Management Department of Columbia College Chicago. He also chaired the Chicago Bar Association’s Start-up and Entrepreneurial Ventures Subcommittee, frequently contributes as a “guest expert” columnist for numerous online publications in the areas of ecommerce, intellectual property and small business and periodically speak to industry and trade groups and associations on these topics.