By Matthew B. Harrison
SPRINGFIELD, Mass. –– Good talk radio hosts draw upon multiple sources for material. News, media, pop culture and their own lives and interests are standard sources for talking points. In today’s digital world two pressing legal questions should be on your mind:
1) How difficult is it to infringe upon someone’s copyright when borrowing a concept, the goodwill, or even actual pieces from someone else’s work?
2) How difficult is it to protect your own work from having others use too much?
Copyright protection is only available for the expression of ideas and not the ideas themselves. This is known as the idea/expression dichotomy.
The “idea” is to, say, do a show on conservative political issues. The idea, furthermore, is to spin (or “position”) an issue in a particular way as to highlight a thought-provoking point. The protectable “expression” is the recording of the segment in which you make the point. While you may have been the first person to make such a point, only your exact expression is protected and other –– perhaps not as talented –– hosts can run with the idea their own way as they see fit.
By Matthew B. Harrison, Esq.
Photos & The Law dot com
as originally published in issue 219 of TALKERS magazine
SPRINGFIELD, MA — On May 16th, at 6:30 am Stefanie Gordon boarded a Delta flight from New York to Palm Beach. Somewhere along the flight, out the window of her airplane seat, she took a photo, tweeted it to friends when she landed, and then headed off to spend the day with her father. Gordon’s now-famous photo of the space shuttle Endeavour soaring through the clouds got her an overwhelming amount of attention but also landed her smack in the middle of an ethical and legal debate inherent to the future of the internet.
The photo was viewed nearly one million times, and has been showed by hundreds of news outlets around the world. She was paid by precisely five news organizations.
by Matthew B. Harrison, Esq.
Harrison Legal Group
SPRINGFIELD, Mass. –– Understanding ownership rights of audio content is one of the more common issues to cross my desk. While most of the information that exists on the topic, including court cases and their analysis, is centered on music-based audio, the rules can be similarly applied to both spoken- or music-based content. Therefore, this article will examine the application of such rules to music and aptly apply them to spoken-word content.
A work made for hire is defined as a work created by an employee within the scope of the employee’s employment. A work made for hire can also be created by a contractual agreement between two parties.
Take success into consideration
by Matthew B. Harrison, Esq.
SPRINGFIELD, Mass — A key aspect of my job as a manager of talent and attorney is to development plans that not only include business and legal components but also take into account the possibility that the projects we are planning might, in fact, become successful. If the pursuit of success is what drives us – then shouldn’t we have a plan that takes the possibility of success into consideration? This is especially important when things involve other people, facilities owned by employers, components from the internet, and so many potential legal and ethical entanglements. It is amazing how often people don’t stop and consider this went entering into plans.
Consider this recent example that dominated twitter trending the past few weeks:
Rebecca Black, 13, recorded a song and music video (called “Friday”) in collaboration with a company specializing in vanity productions. Black’s parents contributed financially to the project, to ensure that they retained all rights in the song and the video, along with the original masters (as allegedly detailed in their initial contract).
The importance of registering copyright
By Matthew B. Harrison
NEW YORK –– Copyright law protects your intellectual property immediately upon the fixation of a creative work in a tangible form. However, in many circumstances it is desirable to additionally register your works with the United States Copyright Office; especially if you want to maintain the ability to sue for significant damages.
Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages. If you do not register your copyright within three months of initial publication, or before the date of the infringement, one would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.
To see how this plays out, assume that I have created an amazing spoken-word audio program and posted it on a website without registering the copyright. Since the audio program is an original work fixed in a tangible form (a playable file) it is protected by copyright. Therefore, if someone from another website comes and copies the file and places it on their website, my copyright has been infringed. In order for me to sue, I need to register the file with the Copyright Office.
Be careful what you post on websites that sell advertising
by Matthew B. Harrison, Esq.
NEW YORK –– Most of us have seen the recent YouTube clip of a woman falling into a fountain at a mall while texting (now dubbed “the fountain lady”). This bit of slapstick reality has attracted millions of views, many duplicates, and even commentaries, remixes and faux interviews. It’s another viral video success and those who boarded that train early are even making money from the ad revenues. But is it legal?
The background involves some mall security employees posting video footage of a fellow female employee falling into a fountain online, while sharing their own “director” commentary while they playback and repeat the video from their security office. With more than three million views in less than two weeks, it spawned many other YouTube videos with their own commentary and creativity. Radio has certainly picked up the story and generated its own share of commentary both on the air and on the web. The identity of the woman was –– at this point –– unknown to the public.
However, this changed when the employee “outed” herself as the person featured in the video. She is threatening lawsuit that someone in security should have come to her rescue instead of laughing at her misfortune. One lesson is quite clear –– it’s easy to be so consumed in our digital devices that we fail to pay attention to our physical surroundings.
By Matthew B. Harrison, esq.
PhotosAndTheLaw.com
Last month, this column detailed the four factors of the fair use defense to copyright infringement. The prior column addressed how to use the provisions of the Digital Millennium Copyright Act in order to protect your audio (and video) from misuse. Both of these articles generated enough reader feedback and follow up questions, that it seemed like a good idea to provide a summary article with some additional clarifications.
The first two, and the most straightforward, of four factors of a fair use defense to copyright infringement are:
· The nature of the copyrighted work; and
· The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
and the two that led to the most follow up are:
· The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; and
· The effect of the use upon the potential market for or value of the copyrighted work.
THE INTERNET AS A DOUBLE EDGED SWORD
Protect yourself while getting the most out of the promotional opportunities
By Matthew B. Harrison, esq.
PhotosAndTheLaw.com
How many of you have your own website that showcases your photography? How many of you use other websites – such as myspace, deviantart, webshots, flickr, etc – to display your work? The Internet can be an amazingly inexpensive way for you, as a photographer, to 1) be able to showcase your work and 2) hopefully bring in potential business through these self-promotional efforts. However, before you run out and get yourself a website to showcase your images, I would like you to think about protecting yourself and your property, so that you do not end up falling into the group that answers affirmatively to the next question.
Of those who do display their work online – how many of you have had the pleasant experience of surfing the web and seeing your image somewhere without your permission? Unfortunately, it happens more than any of us would like to admit and you need to be aware of this phenomenon so that you can adequately protect yourself.
