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Copyright Myths & Pitfalls
A court will find that a particular work is a parody only when it criticizes or ridicules the original work that it’s based on, in some way.
IT’S EASY TO REPURPOSE CREATIVE MATERIAL FOUND ONLINE OR ELSEWHERE. IT’S ALSO EASY TO GET IN A LOT OF LEGAL HOT WATER WHEN YOU DO.
Copyright Myths & Pitfalls
BY LOUIS J. LEVY
C OOVER THE YEARS, I HAVE HEARD A LOT of people confidently claim that their use of copyrighted material for a variety of uses is “fine” when it most decidedly is not.
Some clients have asked: “It’s okay if we use 20 seconds of a popular song in an ad we’re producing, right?”
Another common question is: “I see a lot of people putting photos of scenes from famous movies on t-shirts. That’s okay, right?”
And most damningly, “I found this photo of a rock concert on the web and put it on our site. We just got a demand letter from the photographer. He doesn’t have a case, right?”
Not right, of course. But the questions reveal the types of myths that are out there. The misconceptions can lead you into the thicket of a copyright-infringement claim, which usually requires payment of a substantial amount of money to avoid the untidy costs of a full-fledged court battle and potential damages.
Let me give you a “tour” of the most common copyright myths to consider.
FAIR USE FACTORS
Perhaps the great level of confusion concerns the issue of fair use. Fair use is a copyright law concept that allows third parties to use portions of copyrighted material
in limited circumstances without incurring liability.
Companies frequently assume that use of a brief clip from a video or song is fair merely because it’s short. They may also reason that it’s only an insignificant part of a larger work or not used for a commercial purpose. This, however, is not the case.
The U.S. Copyright Act requires consideration of four factors when determining fair use: ■ The purpose and character of the use (commercial, non-profit or educational); ■ The nature of the copyrighted work; ■ The amount and substantiality of the portion used in relation to the copyrighted work as a whole; ■ The effect of the use upon potential market.
No single factor is dispositive, and one factor may dominate. Take, for example, the 1997 Reginald Denny video case, Los Angeles News Service v. KCAL-TV. The court held that use of just 20 seconds of the four-minute video that captured Reginald Denny’s beating by the Los Angeles Police was enough to constitute copyright infringement because it was the most significant portion of the video.
In another 1997 case, Ringgold v. Black Entm’t TV, Inc., a court rejected a media company’s argument concerning the incidental, background use of a copyrighted poster as part of a set decoration in a sitcom series. The poster was visible to viewers for between 1.86 and 4.16 seconds per segment, and the defendants argued the brief exposure entitled it to fair use rights. Instead, the court focused on the defendant’s decorative purpose in using the work, and the plaintiff’s lost license fees. These cases demonstrate a straightforward point: don’t assume that a fair use defense will protect you. When in doubt, consult with an attorney. The costs of doing so will be far less than the costs of a lawsuit.
HAZARDS OF PARODY
Parodies, which are covered under fair use copyright law, are often misunderstood. Over the years, I have had many clients who believe that using a song or song lyrics for humorous effect is a permissible fair use because it can be generally classified as a parody. This is incorrect.
To qualify as a fair use, the parody must say something about the work being parodied. Merely changing lyrics of a song to refer to something unrelated to the original song is not a parody.
For example, in a case that made it all the way to the Supreme Court, the rap group 2 Live Crew was deemed to have created a defensible parody when it recorded its rap version of Roy Orbison’s famous tune “Pretty Woman.” In that 1994 case, Campbell v. AcuffRose Music, the court referred to two definitions of parody: a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” and a “composition in prose or
OTHER TRUTHS, OTHER CONSEQUENCES
COPYRIGHT NOTICE — Companies often assume that if a photograph or other work lacks a copyright notice (the © symbol or its equivalent), the work is unprotected. This is not true. The formal notice requirement was eliminated when U.S. copyright law was revised in 1976. Use of a copyright notice is not required by law. PRE-EXISTING WORK — We are frequently asked whether modification of a pre-existing work is permissible. For example, several years ago a station wanted to produce a spot for an advertiser using artwork that mimicked the logo and graphics used on the hit television program “Mad Men.” We advised the station against doing so.
Copyright law protects the copyright owner’s right to control creation of copies of their work. And it also allows them to control the creation of works derived from their original work, known as derivate works. Assuming “fair use” is not an issue, modifying graphics, music or other material that is protected under copyright law can easily put you in the defendant’s side of a copyright dispute. CREDIT IS NOT ENOUGH — You cannot avoid a copyright-infringement claim by crediting the author or creator of a work when you use it, unless a fair use defense is appropriate. Your company needs to obtain permission either directly from the copyright owner or from a service that represents their work – for example Getty Images or ShutterStock in the case of photographers.
It’s possible that a copyright owner may readily agree to give permission without compensation, if they receive a credit. The important thing to remember, of course, is to ask beforehand.
PRO LICENSE LIMITATIONS — Performing rights organization (PRO) licenses only cover public performances of musical works (compositions and lyrics).
They do not cover use of the music works incorporated into a promotion produced for an advertiser. Nor do such licenses cover incorporation of music into a documentary, film or video program. To use music in this manner, one has to obtain a “synchronization” (synch) license from the owner of the musical composition and a “master recording” license from the record label or producer that originally recorded the music. If you don’t obtain these licenses, you’ll be guilty of copyright infringement. THERE IS NO 30-SECOND RULE — The myth of the so-called 30-Second Rule has not died. Use of even a short clip of music or a video can lead to a copyrightinfringement claim. It is therefore important to assess the proposed use of such a clip before airing it.
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verse in which the characteristic turns of thought and phrase are imitated in such a way as to make them appear ridiculous.”
Notwithstanding the amount of the original work used by 2 Live Crew, the court nonetheless held that the group’s overall purpose was to mock and in its own way criticize the original, thus entitling it to the benefits of a fair use defense.
The 1969 Harvard Lampoon book “Bored of the Rings” is another example of a permissible parody. The title refers to J.R.R. Tolkien’s “Lord of the Rings.” The Lampoon book was a true parody of the original because it used contemporary irreverent humor to poke fun at Tolkien’s epic work. (In a famous scene from the original novel, the character Bilbo has an opportunity to kill evil Gollum but does not because “pity stayed his hand.” In the parallel scene in “Bored of the Rings,” pity similarly stays Bilbo’s hand, but Bilbo adds “What a pity I’ve run out of bullets.”)
Contrast this with the 1997 Ninth Circuit Court of Appeals finding in Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc. It determined that a book about the O.J. Simpson trial entitled “The Cat NOT in the Hat! A Parody of Dr. Juice” was not a parody of the original Dr Seuss work because it did not in any way criticize or poke fun at the original.
Rather, it was a humorous, satirical take on the Simpson trial that copied elements of the original “Cat in the Hat” children’s story. The parody included the image of the iconic cat’s hat, which appeared multiple times throughout the book, as well as the graphic design of the text style, and the poetic meter of the text, among other things.
The take-away here is straight-forward: a parody is not simply using a copyright owner’s material for comic effect. A court will find that a particular work is a parody only when it criticizes or ridicules the original work that it’s based on, in some way.
SOCIAL MEDIA TRAPS
It is also very important to understand the restrictions related to copying material that you find on the web and then adding it to your website. Most social media platforms post terms of use stating that the material posted remains the property of the owner. Such material can be used, of course, if it is newsworthy and/or used for criticism or commentary. But every effort must be made to avoid creating an impression that your station or platform originated or otherwise owns the image or clip.
Companies also should exercise caution when downloading material, in particular photographs, from websites that claim to offer them for free. Such photos should be vetted. Confirm that they are available without charge.
Photographers frequently watermark their images and use bots to detect unauthorized uses. And Google provides a tool that allows you to search the web for other uses of an image. You just need to right-click on the image. It’s a tool I frequently employ to detect unauthorized uses of my clients’ works.
With that in mind, the following guidelines may be helpful: ■ Always make sure embedded content clearly links to, and bears the logo of, the source platform website (such as Twitter or Facebook). ■ Avoid hosting images or videos lifted from other sites directly on your servers. ■ Articles about a particular posting or trend can include embedded content found on other sites as examples. This would be considered a fair use. ■ If someone’s online account is marked “private,” do not repost their content. ■ Whenever possible, use photographs or other images from reliable stock photo sources such as Getty
Images or Shutterstock.
OTHER DANGERS
Keep in mind that the unlawful use of copyrighted material extends beyond whatever might happen in court. For example, a Tucson radio station copied and broadcast video footage from a local bicycle enthusiast’s blog featuring original content in a news story about cycling without the blogger’s consent. Because the TV station was not using the footage for commentary or criticism, the fair use defense was not available.
The parties settled the dispute for a very nominal amount (just $300), but the public relations fallout in the local community was blistering. The station was very embarrassed and had a real blemish on its reputation.
The station would have saved itself a lot of trouble and aggravation by either asking permission from the blogger, who most likely would have granted permission in exchange for the free publicity. Or the broadcaster could have shot footage of a cycling event itself.
To avoid potentially costly and always distracting copyright-infringement disputes, train employees to recognize these issues and myths. Contact your company’s legal department whenever there is a chance that you might violate a content owner’s rights.
Louis J. Levy is an attorney of counsel at Lerman Senter PLLC. He can be reached at LLevy@lermansenter.com or (202) 416-6748.
