From the 'Lectric Law Library's Stacks
Obscenity is whatever happens to shock some elderly and ignorant magistrate. ~Bertrand Russell, Look, 1954
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by J. Dianne Brinson and Mark Radcliffe, 1994
This primer is based on the Multimedia Law Handbook which is designed to provide accurate information on the legal issues in multimedia and is provided with the understanding that the authors are not engaged in rendering legal services. If you have a legal problem, you should seek the advice of experienced counsel.
An understanding of legal issues is essential to success in the multimedia industry. Mistakes can cost the multimedia developer tens or even hundred of thousands of dollars in legal fees and damages. Delrina lost hundreds of thousands of dollars and had to recall all of the copies of its screen saver last fall when it lost a copyright suit. Delrina distributed a screen saver in which one of the 30 modules showed the comic book character Opus shooting down Berkeley Systems' "flying toasters" (made famous in Berkeley's "After Dark" screen saver program). Berkeley Systems sued Delrina for copyright and trademark infringement. The court ruled for Berkeley Systems, prohibiting further distribution of Delrina's product and requiring Delrina to recall all of the product not already sold.
Two leading multimedia developers, Michael Saenz and Joe Sparks have been in court since the fall of 1993 in a dispute about the ownership of the copyright in their successful game, Spaceship Warlock. The dispute focuses on whether Joe was an employee or independent contractor of Reactor, Inc. (Mike Saenz's company) when they developed the game. If Joe is right in claiming that he was an independent contractor, he is co- owner of the copyright and has a right to half of the profits from the game. These profits could be worth hundreds of thousands of dollars.
This primer will help you understand the legal issues in developing and distributing multimedia works. It is based on the Multimedia Law Handbook from Ladera Press, which has been endorsed by the Interactive Multimedia Association. This summary of the law should not be viewed as "answering" most questions (the Multimedia Law Handbook discusses these issues in more detail in 340 pages and includes eighteen sample agreements to show how these issues are dealt within actual transactions; you can order the book by calling 800-523-3721). Legal matters in multimedia are frequently complex and you should not rely on the information in this primer alone. You should consult with experienced counsel before making any final decisions. Multimedia products require a knowledge of the four major forms of intellectual property as well as the laws governing rights of publicity, defamation and libel.
There are four major intellectual property laws in the United States that are important for multimedia developers:
* Copyright law, which protects original "works of authorship."
* Patent law, which protects new, useful, and "nonobvious" inventions and processes.
* Trademark law, which protects words, names, and symbols used by manufacturers and businesses to identify their goods and services.
* Trade secret law, which protects valuable information not generally known that has been kept secret by its owner.
This primer will focus on U.S. copyright law because copyright law is the most important of these laws for most multimedia developers and publishers.
There are two reasons why it is important for you as a multimedia developer or publisher to be familiar with the basic principles of copyright law:
* Multimedia works are created by combining "content" - music, text, graphics, illustrations, photographs, software - that is protected under copyright law. Developers and publishers must avoid infringing copyrights owned by others.
* Original multimedia works are protected by copyright. The Copyright Act's exclusive rights provision gives developers and publishers the right to control unauthorized exploitation of their works.
Copyright law is a "federal" law and the law does not vary from state to state (although the interpretation of the law may be different in different courts).
This section summarizes the basic principles of copyright law, including the types of works that are protected by copyright, how copyright protection is obtained, and the scope of the protection.
Copyright protection is available for "works of authorship." The Copyright Act states that works of authorship include the following types of works which are of interest to the multimedia developer:
* Literary works. Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories.
Musical works. Songs, advertising jingles, and instrumentals.
* Dramatic works. Plays, operas, and skits.
* Pantomimes and choreographic works. Ballets, modern dance, jazz dance, and mime works.
* Pictorial, graphic, and sculptural works. Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art.
* Motion pictures and other audiovisual works. Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works.
* Sound recordings. Recordings of music, sounds, or words.
Obtaining Copyright Protection
Copyright protection arises automatically when an "original" work of authorship is "fixed" in a tangible medium of expression. Registration with the Copyright Office is optional (but you have to register before you file an infringement suit, and registering early will make you eligible to receive attorney's fees and statutory damages in a future lawsuit).
Here's what "original" and "fixed" mean in copyright law:
Originality: A work is original in the copyright sense if it owes its origin to the author and was not copied from some preexisting work.
Fixation: A work is "fixed" when it is made "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Even copying a computer program into RAM has been found to be of sufficient duration for it to be "fixed" (although some scholars and lawyers disagree with this conclusion).
Neither the "originality" requirement nor the "fixation" requirement is stringent. An author can "fix" words, for example, by writing them down, typing them on an old-fashioned typewriter, dictating them into a tape recorder, or entering them into a computer. A work can be original without being novel or unique.
Example: Betsy's book How to Lose Weight is original in the copyright sense so long as Betsy did not create her book by copying existing material - even if it's the millionth book to be written on the subject of weight loss.
Only minimal creativity is required to meet the originality requirement. No artistic merit or beauty is required.
A work can incorporate preexisting material and still be original. When preexisting material is incorporated into a new work, the copyright on the new work covers only the original material contributed by the author.
Example: Developer's multimedia work incorporates a number of photographs that weremade by Photographer (who gave Developer permission to use the photographs in the multimedia work). The multimedia work as a whole owes its origin to Developer, but the photographs do not. The copyright on the multimedia work does not cover the photographs, just the material created by Developer.
Scope of Protection
Copyright protects against "copying" the "expression" in a work as opposed to the idea of the work. The difference between "idea" and "expression" is one of the most difficult concepts in copyright law. The most important point to understand is that the protection of the "expression" is not limited to exact copying either of the literal words of a novel or the shape of stuffed bear. Copyright infringement extends to new works which are "substantially similar".
A copyright owner has five exclusive rights in the copyrighted work:
* Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, or imitate the work in fixed form.
* Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a "derivative work."
* Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending.
* Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in sequence is considered "performance." Some types of works, such as sound recordings, do not have a public performance right.
* Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered "display."
In addition, certain types of works of "visual art" also have "moral rights" which limit the modification of the work and the use of the author's name without permission from the original author. Anyone who violates any of the exclusive rights of a copyright owner is an infringer.
Example: Developer scanned Photographer's copyrighted photograph, altered the image by using digital editing software, and included the altered version of the photograph in a multimedia work that Developer sold to consumers. If Developer used Photographer's photograph without permission, Developer infringed Photographer's copyright by violating the reproduction right (scanning the photograph), the modification right (altering the photograph), and the distribution right (selling the altered photograph in his work).
A copyright owner can recover actual or, in some cases, statutory damages (which can be as high as $100,000 in some cases) from an infringer. In addition, courts have the power to issue injunctions (orders) to prevent or restrain copyright infringement and to order the impoundment and destruction of infringing copies.
The term of copyright protection depends on three factors: who created the work, when the work was created, and when it was first distributed commercially. For copyrightable works created on and after January 1, 1978, the copyright term for those created by individuals is the life of the author plus 50 years. The copyright term for "works made for hire" (see below) is 75 years from the date of first "publication" (distribution of copies to the general public) or 100 years from the date of creation, whichever expires first.
Generally, the copyright is owned by the person (or persons) who create the work. However, if the work is created by employee within the scope of his or her employment, the employer owns the copyright because it is a "work for hire." The copyright law also includes another form of "work for hire": it applies only to certain types of works which are specially commissioned works. These works include audiovisual works, which will include most multimedia projects. In order to qualify the work as a "specially commissioned" work for hire, the creator must sign a written agreement stating that it is a "work for hire" prior to commencing development of the product (please note that this primer deals only with United States law; most foreign jurisdictions do not recognize the "specially commissioned" work for hire, and you need an assignment to transfer rights in those countries).
Avoiding Copyright Infringement
Current technology makes it fairly easy to combine material created by others - film and television clips, music, graphics, photographs, and text - into a multimedia product. The technical ease of copying these works does not give you the legal right to do so. If you use copyrighted material owned by others without getting permission you can incur liability for hundreds of thousands or even millions of dollars in damages.
Most of the third-party material you will want to use in your multimedia product is protected by copyright. Using copyrighted material without getting permission - either by obtaining an "assignment" or a "license"- can have disastrous consequences. The owner of the copyright can prevent the distribution of your product and obtain damages from you for infringement, even if you did not intentionally include his or her material. An assignment is generally understood to transfer all of the intellectual property rights in a particular work, although an assignment can be more limited in scope. A license provides the right to use a work and is generally quite limited. A discussion of the terms of licenses and assignments is beyond the scope of this primer; it requires several entire chapters in the Multimedia Law Handbook.
Consider the following example:
Productions, Inc. created an interactive multimedia training work called You Can Do It.
The script was written by a freelance writer. You Can Do It includes an excerpt from a recording of Julie Andrews singing Climb Every Mountain. It ends with a photograph of Lauren Bacall shown above the words, "Good luck."
In this example, if the Productions staff did not obtain permission to use the recording of Climb Every Mountain or the photo of Lauren Bacall, You Can Do It infringes three copyrights: the copyright on the song, the copyright on the Julie Andrews recording of the song, and the copyright on the photograph. Productions is also infringing Lauren Bacall's right of publicity (which is separate from copyright) by the commercial use of her image. Furthermore, if Productions did not acquire ownership of the script from the freelance writer, Productions does not have clear title to Do It, and distribution of Do It may infringe the writer's copyright in the script. Any of the copyright owners whose copyrights are infringed may be able to get a court order preventing further distribution of this multimedia product.
There are a number of myths out there concerning the necessity of getting a license. Here are five. Don't make the mistake of believing them:
* Myth #1: "The work I want to use doesn't have a copyright notice on it, so it's not copyrighted. I'm free to use it."
Most published works contain a copyright notice. However, for works published on or after March 1, 1989, the use of copyright notice is optional. The fact that a work doesn't have a copyright notice doesn't mean that the work is not protected by copyright.
* Myth #2: "I don't need a license because I'm using only a small amount of the copyrighted work." It is true that de minimis copying (copying a small amount) is not copyright infringement.
Unfortunately, it is rarely possible to tell where de minimis copying ends and copyright infringement begins. There are no "bright line" rules.
Copying a small amount of a copyrighted work is infringement if what is copied is a qualitatively substantial portion of the copied work. In one case, a magazine article that used 300 words from a 200,000-word autobiography written by President Gerald Ford was found to infringe the copyright on the autobiography. Even though the copied material was only a small part of the autobiography, the copied portions were among the most powerful passages in the autobiography. Copying any part of a copyrighted work is risky. If what you copy is truly a tiny and nonmemorable part of the work, you may get away with it (the work's owner may not be able to tell that your work incorporates an excerpt from the owner's work). However, you run the risk of having to defend your use in expensive litigation. If you are copying, it is better to get a permission or a license (unless fair use applies). You cannot escape liability for infringement by showing how much of the protected work you did not take.
* Myth #3: "Since I'm planning to give credit to all authors whose works I copy, I don't need to get licenses." If you give credit to a work's author, you are not a plagiarist (you are not pretending that you authored the copied work). However, attribution is not a defense to copyright infringement.
* Myth #4: "My multimedia work will be a wonderful showcase for the copyright owner's work, so I'm sure the owner will not object to my use of the work."
Don't assume that a copyright owner will be happy to have you use his or her work. Even if the owner is willing to let you use the work, the owner will probably want to charge you a license fee. Content owners view multimedia as a new market for licensing their material.
In 1993, ten freelance writers sued the New York Times and other publishers over the unauthorized publication of their work through online computer services. And the Harry Fox Agency and other music publishers have sued CompuServe, an online computer service, over the distribution of their music on the service.
* Myth #5: "I don't need a license because I'm going to alter the work I copy."
Generally, you cannot escape liability for copyright infringement by altering or modifying the work you copy. If you copy and modify protected elements of a copyrighted work, you will be infringing the copyright owner's modification right as well as the copying right.
When You Don't Need a License
You don't need a license to use a copyrighted work in three circumstances: (1) if your use is fair use; (2) if the work you use is in the public domain; or (3) if the material you use is factual or an idea.
You don't need a license to use a copyrighted work if your use is "fair use." Unfortunately, it is difficult to tell whether a particular use of a work is fair or unfair. Determinations are made on a case-by-case basis by considering four factors:
* Factor #1: Purpose and character of use. The courts are most likely to find fair use where the use is for noncommercial purposes, such as a book review.
* Factor #2: Nature of the copyrighted work. The courts are most likely to find fair use where the copied work is a factual work rather than a creative one.
* Factor #3: Amount and substantiality of the portion used. The courts are most likely to find fair use where what is used is a tiny amount of the protected work. If what is used is small in amount but substantial in terms of importance - the heart of the copied work - a finding of fair use is unlikely.
* Factor #4: Effect on the potential market for or value of the protected work. The courts are most likely to find fair use where the new work is not a substitute for the copyrighted work.
If your multimedia work serves traditional "fair use" purposes - criticism, comment, news reporting, teaching, scholarship, and research - you have a better chance of falling within the bounds of fair use than you do if your work is a sold to the public for entertainment purposes and for commercial gain.
You don't need a license to use a public domain work. Public domain works - works not protected by copyright - can be used by anyone. Because these works are not protected by copyright, no one can claim the exclusive rights of copyright for such works. For example, the plays of Shakespeare are in the public domain. Works enter the public domain in several ways: the term of the copyright may have expired, the copyright owner may have failed to "renew" his copyright under the old Copyright Act of 1909, or the copyright owner may have failed to properly use copyright notice (of importance only for works created before March 1, 1989, at which time copyright notice became optional). The rules regarding what works are in the public domain are too complex for this primer, and they vary from country to country.
Ideas or Facts
You don't need a license to copy facts from a protected work or to copy ideas from a protected work. The copyright on a work does not extend to the work's facts. This is because copyright protection is limited to original works of authorship, and no one can claim originality or authorship for facts. You are free to copy facts from a copyrighted work.
Creating Your Own Works
Naturally, you don't need a copyright license for material which you create yourself.
However, you should be aware that the rules regarding ownership of copyright are complex. You should not assume that you own the copyright if you pay an independent contractor to create the work (or part of it). In fact, generally the copyright in a work is owned by the individual who creates the work, except for full-time employees working within the scope of their employment and copyrights which are assigned in writing.
While copyright law is the most important intellectual property law for protecting rights in multimedia works, a multimedia developer needs to know enough about patent, trademark, and trade secret law to avoid infringing intellectual property rights owned by others and to be able to take advantage of the protection these laws provide.
Patent law protects inventions and processes ("utility" patents) and ornamental designs ("design" patents). Inventions and processes protected by utility patents can be electrical, mechanical, or chemical in nature. Examples of works protected by utility patents are a microwave oven, genetically engineered bacteria for cleaning up oil spills, a computerized method of running cash management accounts, and a method for curing rubber. Examples of works protected by design patents are a design for the sole of running shoes, a design for sterling silver tableware, and a design for a water fountain.
Obtaining Patent Protection
There are strict requirements for the grant of utility patents and design patents. To qualify for a utility patent, an invention must be new, useful, and "nonobvious." To meet the novelty requirement, the invention must not have been known or used by others in this country before the applicant invented it, and it also must not have been patented or described in a printed publication in the U.S. or a foreign country before the applicant invented it. The policy behind the novelty requirement is that a patent is issued in exchange for the inventor's disclosure to the public of the details of his invention. If the inventor's work is not novel, the inventor is not adding to the public knowledge, so the inventor should not be granted a patent.
To meet the nonobvious requirement, the invention must be sufficiently different from existing technology and knowledge so that, at the time the invention was made, the invention as a whole would not have been obvious to a person having ordinary skill in that field. The policy behind this requirement is that patents should only be granted for real advances, not for mere technical tinkering or modifications of existing inventions.
It is difficult to obtain a utility patent. Even if the invention or process meets the requirements of novelty, utility, and nonobviousness, a patent will not be granted if the invention was patented or described in a printed publication in the U.S. or a foreign country more than one year before the application date, or if the invention was in public use or on sale in the U.S. for more than one year before the application date.
Scope of Protection
A patent owner has the right to exclude others from making, using, or selling the patented invention or design in the United States during the term of the patent. Anyone who makes, uses, or sells a patented invention or design within the United States during the term of the patent without permission from the patent owner is an infringer - even if he or she did not copy the patented invention or design or even know about it.
Example: Developer's staff members, working on their own, developed a software program for manipulating images in Developer's multimedia works. Although Developer's staff didn't know it, Inventor has a patent on that method of image manipulation. Developer's use of the software program infringes Inventor's patent.
Utility patents are granted for a period of 17 years. Design patents are granted for a period of 14 years. Once the patent on an invention or design has expired, anyone is free to make, use, or sell the invention or design.
Trademarks and service marks are words, names, symbols, or devices used by manufacturers of goods and providers of services to identify their goods and services, and to distinguish their goods and services from goods manufactured and sold by others.
Example: The trademark Wordperfect is used by the Wordperfect Corporation to identify that company's word processing software and distinguish that software from other vendors' word processing software.
For trademarks used in commerce, federal trademark protection is available under the federal trademark statute, the Lanham Act. Many states have trademark registration statutes that resemble the Lanham Act, and all states protect unregistered trademarks under the common law (nonstatutory law) of trademarks.
Availability of Protection
Trademark protection is available for words, names, symbols, or devices that are capable of distinguishing the owner's goods or services from the goods or services of others. A trademark that merely describes a class of goods rather than distinguishing the trademark owner's goods from goods provided by others is not protectible.
Example: The word "corn flakes" is not protectible as a trademark for cereal because that term describes a type of cereal that is sold by a number of cereal manufacturers rather than distinguishing one cereal manufacturer's goods.
A trademark that so resembles a trademark already in use in the U.S. as to be likely to cause confusion or mistake is not protectible. In addition, trademarks that are "descriptive" of the functions, quality or character of the goods or services have special requirements before they will be protected.
The most effective trademark protection is obtained by filing a trademark registration application in the Patent and Trademark Office. Federal law also protects unregistered trademarks, but such protection is limited to the geographic area in which the mark is actually being used. State trademark protection under common law is obtained simply by adopting a trademark and using it in connection with goods or services. This protection is limited to the geographic area in which the trademark is actually being used. State statutory protection is obtained by filing an application with the state trademark office.
Scope of Protection
Trademark law in general, whether federal or state, protects a trademark owner's commercial identity (goodwill, reputation, and investment in advertising) by giving the trademark owner the exclusive right to use the trademark on the type of goods or services for which the owner is using the trademark. Any person who uses a trademark in connection with goods or services in a way that is likely to cause confusion is an infringer. Trademark owners can obtain injunctions against the confusing use of their trademarks by others, and they can collect damages for infringement.
Example: Small Multimedia Co. is selling a line of interactive training works under the trademark Personal Tutor. If Giant Multimedia Co. starts selling interactive training works under the trademark Personal Tutor, purchasers may think that Giant's works come from the same source as Small Multimedia's works. Giant is infringing Small's trademark.
Trade Secret Law
A trade secret is information of any sort that is valuable to its owner, not generally known, and that has been kept secret by the owner. Trade secrets are protected only under state law. The Uniform Trade Secrets Act, in effect in a number of states, defines trade secrets as "information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value from not being generally known and not being readily ascertainable and is subject to reasonable efforts to maintain secrecy."
The following types of technical and business information are examples of material that can be protected by trade secret law: customer lists; instructional methods; manufacturing processes; and methods of developing software. Inventions and processes that are not patentable can be protected under trade secret law. Patent applicants generally rely on trade secret law to protect their inventions while the patent applications are pending.
Six factors are generally used to determine whether information is a trade secret:
* The extent to which the information is known outside the claimant's business.
* The extent to which the information is known by the claimant's employees.
* The extent of measures taken by the claimant to guard the secrecy of the information.
* The value of the information to the claimant and the claimant's competitors.
* The amount of effort or money expended by the claimant in developing the information.
* The ease with which the information could be acquired by others.
Information has value if it gives rise to actual or potential commercial advantage for the owner of the information. Although a trade secret need not be unique in the patent law sense, information that is generally known is not protected under trade secrets law.
Trade secret protection attaches automatically when information of value to the owner is kept secret by the owner.
Scope of Protection
A trade secret owner has the right to keep others from misappropriating and using the trade secret. Sometimes the misappropriation is a result of industrial espionage. Many trade secret cases involve people who have taken their former employers' trade secrets for use in new businesses or for new employers. Trade secret owners have recourse only against misappropriation. Discovery of protected information through independent research or reverse engineering (taking a product apart to see how it works) is not misappropriation.
Trade secret protection endures so long as the requirements for protection - generally, value to the owner and secrecy - continue to be met. The protection is lost if the owner fails to take reasonable steps to keep the information secret.
Example: After Sam discovered a new method for manipulating images in multimedia works, he demonstrated his new method to a number of other developers at a multimedia conference. Sam lost his trade secret protection for the image manipulation method because he failed to keep his method secret.
RIGHTS OF PUBLICITY , LIBEL AND OTHER LAWS
In addition to the intellectual property laws discussed above, you must also be familiar with the several other areas of law that deal with the right of the individual to control his image and reputation. The right of publicity gives the individual the right to control his name, face, image or voice for commercial purposes. For example, Ford's advertising agency tried to persuade Bette Midler to sing during a Ford television commercial. She refused. They hired her backup singer.
The performance of the backup singer was so similar to Bette Midler that viewers thought Bette Midler was singing. On the basis of that confusion, she sued and won $400,000 in damages.
Libel and slander protect an individual against the dissemination of falsehoods about that individual. To be actionable, the falsehood must injure his or her reputation or subject them to hatred, contempt or ridicule. The individual can obtain monetary losses as well as damages for mental anguish.
If you intend to use pre-existing material from television or film, you may also have to deal with the rights of entertainment unions to "re- use" fees. These unions include the Writers Guild, the Directors Guild, the Screen Actors Guild, American Federation of Musicians and the American Federation of Television and Radio Artists. Under the union agreements with the film and television studios, members of these unions and guilds who worked on a film or television program have a right to payment if the work is re-used. Although you as the multimedia developer are not signatory to these agreements and may not be directly liable for these payments, the license from the film and television studio generally makes you responsible for them. These payments are generally modest. However, if you are using many clips these payments can become quite expensive.
If you use professional actors, directors or writers in developing your product, you will also need to deal with these unions. Most of the unions have very complex contracts developed specifically for their traditional film and television work. They are still trying to understand how to deal with the multimedia industry, although both SAG and AFTRA have developed a special contract for multimedia projects. You should be aware that if you use professional talent, you should be prepared for the additional complexity arising out of these union agreements.
HYPOTHETICAL MULTIMEDIA WORK.
This section will apply these legal rules to the creation and distribution of a new multimedia work based on a retrospective of the Academy Awards. The work is being created by a new company, Hollywood Productions. Its intended market is individuals and film students. It will be distributed on a CD ROM and laser disk. The work will consist of the following elements:
Videoclips from the Academy Award ceremonies.
Magazine articles about the winning movies.
Excepts from various books about the awards and the film industry, including Final Cut, Reel Power, and History of American Film.
Software to permit access to the material in numerous ways.
Film clips of news programs and excerpts from winning motion pictures.
New video works created by Hollywood Productions to explain basic film industry concepts. Music, including some of the hit songs from the winning motion pictures.
A. TEXT WORKS AND COMPUTER SOFTWARE.
The magazine articles, the excerpts from the pre-existing books and the computer software may be treated differently from a legal point of view. Hollywood Productions is creating the new text and the computer software. As the creator, it will probably own the copyright in those elements, either through the work-for-hire doctrine or assignments.
On the other hand, Hollywood Productions must go to the owners of the copyrights, or licensees of the copyrights, in the magazine articles (or perhaps the authors of the articles) and books to obtain the rights to use these materials in its work.
Copyrights in photographs are initially owned by the photographer, although they may either be assigned to another party or transferred to the photographer's employer under the work-for-hire doctrine. The determination of who owns the appropriate rights in the photograph can be very difficult and time consuming because of fragmentation in this industry. For example, the fact that a photograph appeared in the Forbes does not necessarily mean that the Forbes owns the copyright in the photograph. Forbes may only have a license to use it once in its magazine. Common limitations in the licensing of photographs include the color of reproduction, the medium (i.e. newspapers, magazines, etc.), and attribution as well as those relating to numbers of copies.
The rights required for an interactive multimedia work would be quite different from those which are normally granted to use photographs. For example, the photograph may appear several times throughout the work and the number of its appearances could be controlled by the viewer.
Such flexibility is quite different from the rights traditionally granted in the photography industry.
C. FILM CLIPS AND VIDEOS.
Once again, Hollywood Productions must distinguish between video which it has created (for which, if the legal issues were properly structured, it will own the copyrights) and those for which it needs to obtain rights. The "authors" of a videotape may include the actors, directors, scriptwriters, music composers and the cameramen. To avoid the problems of joint ownership of copyright, Hollywood Productions should obtain the appropriate agreements from the individuals who are creating its videotapes. The use of the videoclips from the ceremony may require multiple clearances including clearing the music used in the videoclip, obtaining the license from the copyright owner, paying reuse fees to the entertainment unions such as SAG and Directors Guild, and clearing the rights of publicity of the participants. In addition, if Hollywood Productions uses the "scripted" performances, it will have to pay reuse fees to the writers if they are members of the Writers Guild.
D. NEWS PROGRAMS AND OTHER STOCK FILM.
Stock footage is available from "stock houses" in many cities. Materials available from stock houses range from historical footage of various locations to commercials. Other institutions, such as television stations, may also license their newscasts. These institutions generally base their royalty on the type of use of the film. For example, different royalties are due for use on national television or regional television. Since the multimedia work would not fit easily into any of these categories, Hollywood Productions would probably have to negotiate a special license with these institutions.
E. FEATURE FILMS.
The use of feature films can be particularly complex and expensive. Feature films are frequently based on a novel whose use is licensed to the studio. The film may also use music developed by a third party. Consequently, the owner of the copyright in the film may not have the necessary rights to the music or the underlying novel to permit their use in the multimedia work. This situation is further complicated by provisions of the various motion picture industry guild agreements (such as the Screen Actors Guild and the Directors Guild of America) which require payment of fees upon incorporation of parts or portions of the film into another work.
Hollywood Productions may also have to obtain rights of publicity releases from the individual actors depending on their contract with the studio.
To use music in the new work, Hollywood Productions may require obtaining rights from several different parties. The rights necessary depend on whether or not Hollywood Production records the music itself or wishes to use the performance of a third party. Since the music will frequently be sound tracks from a particular motion picture, Hollywood Productions will need to clear the rights to particular performances of the music. Rights in music are quite complicated. The rights which Hollywood Productions must consider obtaining are described below: .
1. Mechanical rights. Mechanical rights are the basic right to use a musical composition.
They do not include the right to publicly perform the music (see below). A mechanical license also does not permit the use of the music with still or moving images. Such use requires a "synchronization" license (see below). Although copyright law provides a compulsory license for mechanical rights, most licensees prefer to obtain these rights commercially through the Harry Fox Agency or other similar agencies. This preference is based on the very onerous payment and accounting requirements imposed on the "compulsory" license in the Copyright Act.
2. Synchronization license. If the music is to be synchronized with still or moving images on a screen, the licensee must obtain a "synchronization" license. Although these rights may also be handled by the Harry Fox Agency, in some cases Hollywood Productions may need to contact the musical publisher directly.
3. Public performance rights. Hollywood Productions will probably also need a license for public performance because its multimedia work will be shown to students and other audiences. Such a showing would be considered a public performance. A performance is considered public if it is "open to the public" or at any place where a substantial number of persons outside of the "normal circle of family and social acquaintances" gather. Most music publishers permit either ASCAP or BMI to license their public performance rights. These rights do not apply to a particular performance by a particular individual or group to use the particular recording of a performance of the musical composition. Thus, obtaining a mechanical license to "Yesterday" would not permit Hollywood Productions to use the Beatle's performance of the song.
4. Right to a particular performance or recording. As described above, if Hollywood Productions desires the musical composition to be performed by a particular group or individual, it must also obtain the right of the copyright holder in that particular performance. The licenses described above are limited solely to the right to use the musical composition. Thus, unless Hollywood Productions is prepared to have new artists record the music, it must negotiate with the holder of the rights to the particular performance which it desires to use. These rights are generally held by record companies.
An understanding of legal issues is critical to success in the
multimedia industry. These issues are complex because of the youth of
the industry and the many industries upon which it draws to create its
products. The Multimedia Law Handbook, which has been endorsed by the
Interactive Multimedia Association, provides a guide to these issues.
Copyright 1994 J. Dianne Brinson and Mark Radcliffe
J. Dianne Brinson has a law degree from Yale Law School and is now in private practice as a consultant in Menlo Park, California. She may be reached at email@example.com
Mark F. Radcliffe, a Harvard Law School grad, is a partner in the law firm of Gray Cary Ware & Freidenrich in Palo Alto. He can be reached at firstname.lastname@example.org
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