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.

The purpose for this distinction is to balance the First Amendment goals of free expression with the copyright goals of advancing the useful arts and sciences by affording protection to the creators of such work.
This idea/expression dichotomy is ultimately the crux of the analysis regarding potential copyright infringement.

It is very obvious in a painting. If you paint a picture of the sun setting into a lake by your house, you cannot prevent others from painting the same scene. However, you can prevent someone from taking your original painting and turning it into a poster for sale.

In photography, a recent case decision also makes this concept seem obvious. In recent news, photographer Ryan McGinley, known for work that presents a lush vision of youth culture, was sued by another photographer who accused him of relying too heavily on her work for his inspiration. Janine Gordon filed suit against McGinley saying that at least 150 of his photographs are “substantially based” on her work and are violations of her copyright protections. She lost because artists can have no claim to ideas such as an interracial couple kissing, a person gazing skyward with outstretched arms, or a man riding on a spotted horse.

In radio, it should be equally as obvious despite talent wanting to think that there are less potential iterations for ideas as there are in painting or photography. Unless someone is using the exact words –– using the same ideas even in extremely similar ways will not be enough to evoke copyright infringement. Of course, this goes both ways. If a host is using a magazine article as part of his preparation, and recites the article word for word –– even only in part –– there could be infringement (though, there may also be a fair use defense, but that is for another article). On the opposite side, if a website reposts content from your show on their page, it too could be infringement.

Understanding the idea/expression dichotomy will allow you to use material without infringing upon others’ protected content while also knowing when usage of material is infringing your rights.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

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.

This was not the first time this happened. Janis Krum landed in the middle of the digital rights debate in 2009, when a passenger aircraft made an unexpected landing in the Hudson River. Krum took the one photo on his iPhone and instantly tweeted it from the ferry he was on a few feet from the plane, before helping passengers off the floating aircraft. He earned virtually nothing from his famous photo, which was copied and used by both commercial and private publications around the world.

While some think everything digital on the internet should be free, commercial outlets that sell a product using images and videos should feel compelled to pay for content they use.

This affects the broadcaster in two ways: first, there is potential liability for re-posting content that is found online; second, you need to protect your own original content before posting it online. And, yes, in today’s world of media convergence, photography falls into the elemental arsenal of radio broadcasters!

The mere act of taking a photograph grants the photographer copyright in the image Sharing it on a social media sites – in theory – does nothing to limit or reduce that fundamental right. So, unless the photograph is posted with a message that says, “copy this and pass it along” the photographer would maintain the copyright in the image. This applies to photographs, text, audio, or video content.

While copyright may attach immediately upon pressing the shutter or record button, so comes with it the cloud of legal uncertainty. Professional photographers are well schooled in controlling image distribution, but in the era where “everyone is a photographer,” it is often an amateur that shakes things up.

It is happening more often than ever that an amateur takes an amazing photo and does not realize its inherent value right away. Gordon immediately tweeted it, and that just let the floodgates open. People need to realize that their work – especially that which is newsworthy – may have value.

Amateurs probably wouldn’t consider this in the middle of such excitement, but it is possible to sell more valuable exclusive rights to a news outlet, or to find an agency to do the bidding for you. The days when Newsweek and Time magazine would fight over the rights to a photo with six-figure checks are dwindling, but there is still value in exploring value ahead of publication to social media.

News outlets can publish content under the theory that it is protected First Amendment speech. However, its application as fair use is widely debated. In a situation when a news outlet has no alternative access to an important image, they would be protected by fair use. However – those cases are much rarer than one would expect.

Meanwhile, retaining copyright doesn’t mean retaining all rights. A particularly vexing problem facing users of services like Twitpic involves the ever-changing fine print in the sites’ terms of service agreements. Both Gordon and Krum used Twitpic to share their photos. Currently, Twitpics’ terms of service informs users that the firm has the right to resell any images loaded by original rights holders onto its servers. In other words, Gordon has the right to sell her Space Shuttle picture, but TwitPic does now, too. They take an unlimited non-exclusive license to use the image – and by uploading it, you give them that right.

It is inevitable that amateur users will increasingly find themselves in possession of powerful, newsworthy photos and video content… and the temptation for professionals to use them without acquiring the rights – either claiming fair use based on their being newsworthy or the belief that since it was found for free on the internet, the creator doesn’t care about their rights in it – will only lead to future liability.

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.

Unlike radio contracts, most recording contracts are classified as independent contractor relationships and as such, recording contracts are not usually deemed as works made for hire. However, record labels are adding work made for hire clauses.

Under the definition of “work made for hire” in the Copyright Act, works are eligible for such status if there is an employment relationship or if certain types of works are commissioned (as detailed in a contract). These include “a contribution to a collective work” and “a compilation.” Both of these categories include sound recordings.

Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the masters of the recording.

As a general rule, artists retain the right to have all masters returned after a 10-year incubatory period. But, now that is changing as the industry standard is shifting from independent contractor relationships to works made for hire.

In September 2010, Bob Marley’s family lost a lawsuit against Island Records seeking the copyrights to several of his best recordings. “Each of the [recording] agreements provided that the sound recordings were the ‘absolute property’ of Island,” U.S. District Judge Denise Cote wrote. She added that it was irrelevant that Marley might have maintained artistic control over the recording process. What mattered, she said, was that Island had a contractual “right” to accept or reject what he produced.

If the parties do not expressly agree in writing that a sound recording is a work made for hire, and an employer/employee agreement is not in effect, then the collaborators are joint authors of that sound recording. The applicable sections of copyright law, taken together, mean that unless each author’s contribution is distinct, discrete and separately distinguishable within the collaborative work, the law may deem them to be joint owners of the whole. Absent an agreement to the contrary, authors own the work jointly and equally.

Each joint author, therefore, has the right to exercise any or all of the exclusive rights inherent in the joint work. This means that each author can grant third parties permission to use the work on a non-exclusive basis without the consent of other joint authors. Each author may also transfer his or her entire ownership interest to another person without the other joint authors’ consent. Each author may also update the work for his or her own purposes. Additionally, each joint author has a duty to account to the other joint authors for any profits received from licensing the joint work. This certainly could be a problem if you intended on maintaining exclusive control over the joint work.

What does this mean for you? It means that you need to read and understand the paperwork that you are signing when you are working on creating audio content.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at Matthew@matthewharrison.com. Meet him at the New Media Seminar June 10-11 in New York City.

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).

While I am not privy to the specific contracts, I am confident that they were not written with success in mind. Why should they have been? This particular vanity production company had never produced a hit record or video. Their concerns likely centered on the assumption their clients – including Black and her parents – shouldn’t expect this song and video to make her a star.

As it turned out, this video did make Rebecca Black a star. With over 100 million views on YouTube in less than a month, this 13 year old and her song “Friday” was a bigger twitter buzz than the Tsunami – when the natural disaster had just happened and its aftermath was unfolding. While not all of the attention was positive, the barrage of publicity put a lot of eyes on her, including Ryan Seacrest who had Black on his radio show and later facilitated Black’s management by DB Entertainment.

In this situation – Black, her parents, and the vanity production company had contracts that were supposed to detail the rights of the parties. However, when the production company made the song available on iTunes as a download and ring tone, the Blacks threatened a lawsuit for copyright infringement claiming that only they had the rights to distribute the song. While it’s not clear if the matter will be resolved prior to a court filing, it is clear that even having a contract will not be useful if the parties don’t account for success.

How many projects are you involved in where there isn’t any paperwork attempting to detail the rights of the parties involved? If the answer is anything more than zero – then you should take some time to re-evaluate your plans.

Who owns the project? Let’s first assume that you are sole creator of the work. It’s clear that if you are using radio station facilities during time that you are being paid that your ownership of anything will seriously be questioned. But what if you are in the production room of your radio station after hours working on the tracks of a program that you want to use on your commercial website? If you are salary, is there actually an “after hours?” If you are using their equipment, don’t they have ownership interest? What if you use their phones, computers, or e-mail in the creation or production of the show? What if you are working with others? How many times has a musician/vocalist appeared on the track of another without getting compensation or credit? How many lawsuits have resulted from those appearances where no one thought about things that would arise should they be successful?

I am not suggesting that you need to have formal contracts written by an attorney for every deal that you enter into. Instead, save yourself later headaches and legal issues by anticipating problems that would arise should the project be successful and address those potential issues in advance.

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.

Assuming that the infringing website doesn’t have any valid defense –– such as fair use –– then I would be able to collect my losses, plus any profits that the infringer accrued by virtue of the infringement.

What are my losses? It is easier to determine the value of the loss when the content is only available by paid subscription, rather than content that is freely available. How does one prove the value of the harm? What if the infringing website isn’t profiting from the infringement? Additionally, I would end up paying my attorney’s fees.

However, if I had registered this program within three months of its first publication, then I would be able to recover statutory damages in lieu of my virtually non-existent actual damages.

If the court finds that as long as the infringement was not committed willfully, the penalty per instance of infringement is between $750 and $30,000. However, if the court determines that the infringement was committed willfully (i.e. it was taken off your website and had any identifying owner information removed), the court may increase the award of statutory damages to a sum of not more than $150,000. Additionally, the infringing party also pays for attorney fees and court costs when infringement is willful.

Filling out the forms online can be complicated and it is recommended that you contact a licensed attorney in your state to assist with your registration process.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

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.

Is the video considered newsworthy? The right of privacy does not apply to newsworthy events that happen in a location where the subject doesn’t have an increased expectation of privacy. While the mall is technically a privately owned place, the areas of the mall open to the public are public space for right-of-privacy purposes. Therefore posting this will not be an infringement on the privacy of the fountain lady.

But what if you had the exclusive and you post it on your own commercial website? Hopefully you are selling advertising on your own websites. However, even generally, you put it on your YouTube account as I have seen many other operators re-posting the original video with their own degree of editing, creativity and commentary. Their videos feature advertising –– not only as overlays but also as pre-rolls, requiring viewers to watch it first prior to being able to see the video.
It is a much clearer issue when an individual seeks to profit from something by using it directly in an advertisement as in using footage of a celebrity’s use of a product as if it were an endorsement. However, common use of these entertaining videos is when it’s combined with personal commentary to inform or entertain viewers/subscribers. With the YouTube example, when a video “catches fire” users have an option of adding advertising –– both as click-through overlays and pre-roll video ads –– YouTube and channel partners profit from the revenue generated.

Legality is dependent upon how the owner of the site is compensated. Passive advertising, such as banner ads that viewers are free to ignore, would not be as likely an issue as active advertising such as forcing viewers to watch an advertisement prior to viewing the main video.

Are you making money directly from the footage? Or are you making money from your commentary about the footage? Television stations show newsworthy videos of private persons and generate revenue from the ad sales during the broadcast.

One can always skip over a TV ad, or turn off the TV for a while and turn it on again. It’s more difficult to not watch a web video’s pre-roll ad if you want to watch the main video. If they are making money off active advertising, does this mean that YouTube is liable for infringement upon the fountain lady’s privacy? No. Because YouTube and other service providers are protected by the Communications Decency Act that protects such actors from state law privacy and publicity claims. However, it does not extend its protections to you, the actual content provider. If you post it and are making money from it directly, then you might be liable.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.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.

While there are a few published decisions outlining some of the potential interpretations of these four factors, more than likely your particular circumstances were not addressed. The application of the fair use defense is a fact specific process and even though there may be precedent, some of the courts have come to differing conclusions based upon giving the factors variable weights.

It’s easy to get caught up in the fluid dynamics between entertainment and news in this post consolidation era, and because of this, I think courts look more at the actual content of the program more than what type of program the show purports to be.

The important thing to understand about the purpose and use factor is that the current body of copyright law (both statue and case law) favors the fast and free dissemination of necessary information over any sort of commercial plundering of someone else’s intellectual property. So while your show may be considered a commercial entity, you may be granted the fair use defense if you aired a clip that furthered a newsworthy or artistic cause that was not central to the commercial nature of the show.

One could probably air a clip of Tina Fay as Sarah Palin for a segment of a program featuring newsworthy political commentary or social satire and have it be considered a fair use. However, having the clip as part of a sponsored segment of the program, would probably be less likely to be considered fair use.

The other factor, the effect of the alleged fair use on the potential market of the original, is becoming less of a factor with web 2.0 and websites like youtube. If you – a content provider (host, station, program, network, etc.) – provide free access to content that can then be easily and instantly disseminated, you are going to have a difficult time arguing that any unauthorized use limited your commercial exploitation of the market.
Especially when there are hosts and networks charging for access to the archives and/or special broadcasts on the website . There is a significant argument to be made that suggests that when a broadcast is aired without permission, destroys the marketability of these derivative works (archives).

This means that it is not in your best interest – i.e. protect yourself and the value of your intellectual property from being infringed upon and being considered a fair use – to provide a significant amount of free content unless it’s specifically as promotion of premium content that is available for a cost on your website.

by Matthew B. Harrison, Esq.
PhotosAndTheLaw.com

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.

As a point of reference, this article is about non-commercial use of the image by an unauthorized party as opposed to a commercial use. Unauthorized commercial use is an entirely different animal and may be outlined in future articles.

Pretend for a minute that you are not the intelligent and informed reader of this website that you are, but instead are my cousin Vinny. While he may think he is of sound legal mind, he is not a lawyer. He’s just a normal guy who doesn’t really know much about anything – and even less about technology. He may know what a computer is – but his main purpose for using it is the access to free adult material.

So while I can write about copyright protection until the cows come home, and throw out directives for you to assume that materials on the Internet cannot be used without permission – do you think that my cousin Vinny is going to listen to what I am talking about – let alone follow by my words? Not a chance – even if I had a scantily clad model holding up a giant sign.

But Vinny! You are committing a copyright violation by taking that image off someone else’s website and posting it on your page – or sending it out via email to your buddies – or even using it on your desktop as a background image.

His actual response: (after the shut up kid… you bother me) “Hey… I got it for free on the Internet… If they didn’t want me to have it, why would they put it out there?

What Vinny is trying to get at is a fair use argument. Does his justification have merit?

What is fair use?

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

So what is Fair Use? The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether or not a specific use qualifies as a fair use. For example, one important factor is whether the potentially infringing use will deprive the copyright owner of income. It seems straight forward, but unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The Fair Use statute: The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society’s interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a “fair use.”

These factors are as follows:

· The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
· The nature of the copyrighted work;
· The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
· The effect of the use upon the potential market for or value of the copyrighted work.

So getting back to Vinny – if a work is freely available on the internet – making a copy will have little or no effect on its market simply because no commercial market for the work has been established or claimed… and that is not good for the photographer who gets ripped off from someone like Vinny. It means that as long as you – the photographer – were not selling the particular image copied (in the form that was copied) whoever did the copying has a pretty strong argument for a fair use defense.

So how do you protect yourself from falling into the trap of a fair use argument?

While I hate to say this because as an artist myself the following advice pains me…

A photographer needs to identify their work and claim the value of it on their website. One way to identify the owner of the work is to watermark the image; and if you really want to protect yourself at the cost of devaluing the overall aesthetic of the image – the watermark should be towards the center of the image so that it cannot be cropped off. By doing this – it is painfully obvious that the work belongs to someone.

By offering licensing to use the image, or making the image for sale in the form of a print on your website, you are evidencing actual financial value to the image on the site – and to any reproduction made by the image. This will, in the least, provide you with an argument against a proposed fair use defense that an infringer may have.

Matthew B. Harrison is an entertainment and media attorney with Harrison Strategies, LLC. The New York based talent management group has offices in Massachusetts, New York and Washington D.C. When not practicing law, Harrison also is a fine art photographer with FNS Studios located in Springfield, MA and Silver Jack Photo located in Brooklyn, NY. Visit him on the web at www.photosandthelaw.com or email him at matthew@matthewharrison.com