Founder's Journal

What You Need To Know About Copyright And Video

William Gadea 04.19.2019

For those of us who create or use content, understanding the basics of copyright is very important. Breach of copyright is not just unfair to the creator of a work, it can also result in legal liability and a waste of effort.

What is a copyright?

Just as how patents were developed to give innovators the right to control and profit from their inventions, copyright was created to give authors and other creators of content the right to control and profit from their work.

Copyright is not a single right. It is best thought of as a bundle of rights. These rights can be sold or rented to others with conditions on time, territory, usage, and modification. If you purchase a license for a piece of music for your video, for instance, that license may have limitations on how you can use the video. It may be permissible to use online, but not be cleared for use on broadcast television.

You do not need to do anything to gain a copyright other than create the content. While it is possible to register a work with the copyright office, and that registration can provide proof of authorship, it is not strictly necessary for you to gain and benefit from your rights.

What does copyright not protect?

As the copyright office itself will tell you, “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

What can you do to protect against breach?

At the most basic level, make sure you have usage permission from the people that create your content. At IdeaRocket, our employee/freelancer contracts transfer their rights to us, and we then transfer all our rights to our clients in our standard client contract. Additionally, we sometimes license material for use, such as library music, and we make sure those licenses are appropriate for the video’s usage.

Despite the best of intentions, sometimes mistakes are made. Errors and Omissions (or E&O for short) is a kind of insurance that protects you from legal liability as a result of copyright or trademark breach. It is currently one of the insurances IdeaRocket pays for in order to protect itself and its clients from claims.

But you can use copyrighted material if it’s Fair Use, right?

The complicated answer to this is: sometimes.

What is Fair Use? It is a justification for use of copyright material when it is desirable for the greater interests of our society. This doctrine identifies four factors that should be taken into consideration when adjudicating whether a use of copyrighted material can be defended:

  1. Purpose and character of the use. A scholarly and non-commercial citation of a novel, for instance, is more defendable than a movie based on that novel.
  2. Nature of the copyrighted work. Something like news value may provide a justification for use of a copyrighted work.
  3. Amount and substantiality. If you use a bar of music, say, that’s more defendable than reproducing 95% of the work.
  4. Effect upon work’s value. This has sometimes been considered the most important consideration. If the breach should hurt the rights-holder because it becomes a substitute for the original, then that will be judged as more serious than say a parody, that might actually increase the original’s reknown and marketability.

This all gets very complicated in case law, and as our lawyer Ivan Saperstein observes in this post, if you’re sued, you’ve already lost, so it’s best to be cautious.

What are moral rights?

In some jurisdictions, creators are said to have certain moral rights protecting their work’s integrity and attribution, that are separate from copyright. Most copyright transfer contracts include a waiver of these rights, so it’s mainly a non-issue these days.

What Is Creative Commons?

Creative Commons is an organization dedicated to sharing and reusing creativity and knowledge. They have created a number of licenses that allow creators to share their material with the public, sometimes with limitations on usage (commercial or non-commercial,) attribution, and modification, but sometimes with no limitations at all.

There are a number of tools available to help you find material that is available for reuse:
Unsplash: Unsplash provides high-quality images that are perfect for use on blogs and websites. The lead image on this post was pulled from Unsplash. There are also a number of other sites offering similar services to Unsplash.
Google: When you are on the Google image search page, click on Tools and you will see a Usage Rights pull-down. You can filter your search according to four license options.
Wikimedia: Wikimedia Commons allows you to search image, sound, and video files that have Creative Commons licenses.
Other platforms: Many other video production platform, such as YouTube, Vimeo, Flickr, and others provide ways for searching for Creative Commons materials, as well as ways of marking your work as available to be shared.

While we try to protect our clients for copyright breaches, this is a complicated subject. If you’re in doubt about a matter of the law, it’s best to contact a lawyer for advice.

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