Let’s face it: we can’t all compose beautiful music, draw stunning illustrations, and make professional movies. Yet you may want to put together a project that includes these art forms and more–for instance, a Web site that plays music in the background, contains eye-catching GIFs on each page, and plays Flash animations on your navigation buttons. Rather than doing all of the artwork yourself, you may need to use someone else’s creations to bring your project to fruition. The question is, How can you use the work legally and fairly?
Besides playing fair with the artist and the copyright owner by not stealing what belongs to them, you also want to avoid the stiff penalties imposed for breaking copyright laws. You could get hit up for as much as $150,000 each time you copy, distribute (give away or sell), or display or perform publicly someone else’s copyrighted work; this includes showing it on your Web site. The copyright owner may be able to collect from money you earn for the next 20 years.
Avoid the guilt, the civil liability, and the criminal penalties by finding out if a copyright protects a work. If so, then clear the rights (obtain permission) to use it. Here are some pointers on making sure you stay within the law.
Make a Detailed Plan
The first step in using someone else’s work is to decide exactly how you want to use it. This will help you decide whether you need to clear the copyright and will also give you answers to typical copyright-owner questions.
First of all, how do you intend to use the work? For example, do you want to play an entire song over your movie’s ending credits, or use just the chorus in a small scene?
If you’re creating a Web site, do you want to link to another site? Although you probably have the right to link to a home page without permission, lawsuits are currently pending regarding the right to link to a page within another Web site (“deep linking”), bypassing the site’s home-page advertisements. Also, you may or may not have the right to pull another site’s copyrighted content into a frame on your own site, making it appear to be yours, without permission. The law isn’t clear on these issues yet.
Here are some other questions that will prepare you for the process of using someone else’s work: How do you plan to distribute the copyrighted work? Will you use it on the Internet? Will you make CD-ROMs, CDs, DATs, MP3 files, videos, or DVDs that include the work? In what countries will you make these media available? For how long do you intend to use the work?
Do You Need Permission?
It’s always safest to ask for permission before you make someone else’s work a part of your own production. However, if a work isn’t protected by copyright, you have the right to use it without asking.
Copyright protects work for only a certain period of time. After that period expires, the work goes into the public domain, and anyone may use it without permission and without paying royalties or fees.
Figuring out the length of protection in the United States can be tricky. Federal copyright law has changed over the years. It used to require owners to register and provide notice of copyright; otherwise the work would fall into the public domain. These rules still apply to certain works created before 1978.
In the United States, copyright law protects works created on or after January 1, 1978, for the life of the author (creator), plus 70 years. For works created before that date, the duration of protection depends on such things as the date of creation, when the work was first published, whether it was registered, and if copies of it included a copyright notice. As a general rule and based on my interpretation of copyright laws, I don’t presume that anything is in the public domain in the United States unless it was created and sold to the American public before 1904. The U.S. Copyright Office’s Web site (
) has additional information.
Music-CD cover courtesy of Steve Vai and Epic Records; Illustration by Aaron Brown.
Breaking the Law?
This illustration from a music-CD cover is original enough to copyright. Therefore, does reproducing it in Macworld and distributing it all over the world constitute copyright infringement? Or is it fair use?
Let’s consider the four fair-use guidelines detailed in the article. Although the CD cover image is more creative than a simple drawing and we’re showing the entire work rather than a small corner of it, we’re using it for teaching purposes. And, most important in this situation, we’re not interfering with its value or restricting the copyright owner’s market. I think it’s fair use.
As a professional courtesy, however, we got permission from copyright owner Epic Records and musician Steve Vai to use the image. We also
credit the artist, Aaron Brown. Although this isn’t legally necessary, it’s the right thing to do.
Never assume that just because a work is in the public domain in one country, it’s in the public domain everywhere–copyright-protection periods vary from country to country. In fact, some nations protect photographic works, sound recordings, and movies in a different manner than the United States protects them. For instance, the famous 1902 silent film Le voyage dans la lune (A Trip to the Moon), by Georges Méliès, is still protected in France.
Even if a work is protected by copyright, you may still be able to use it without permission–if the way you use it qualifies legally as fair use.
Copyright law gives four general guidelines determining what constitutes fair use. First, if you’re using a work for noncommercial purposes, it may qualify because you’re not trying to profit from the creations of others. For instance, using a work for criticism, comment, news reporting, teaching, scholarship, or research purposes is often fair use, as it tends to foster freedom of speech.
The second guideline is that the less creative and original a work is, the more likely it is that you can use it without permission. (For detailed examples of what qualifies as original and creative work, see “Put Your Work under Lock and Key,” Create, July 2000.)
Third, you may be able to use just a portion of a work, rather than the entire thing, without permission; this is often considered fair use (while copying an entire work usually isn’t). Contrary to popular belief, there is no set number of musical notes you may copy without permission: if you can name that tune in five notes because they make up most of the chorus to a famous song–and therefore form a substantial part of that song–you might end up the target of a lawsuit that could drag on for five long years.
Finally, it’s illegal to use a work if doing so will affect its value or the owner’s potential market for that work (see the sidebar “Is Macworld Breaking the Law?”). Basically, it’s unfair to compete with someone by using his or her own work. For instance, it wouldn’t be fair for a nonprofit organization to sell CDs as a fund-raiser without the artist’s permission, since the fund-raiser would be competing for CD sales.
Courts weigh the answers to all of these questions before deciding whether someone is using a copyrighted work under the fair-use provision. A federal judge in California decided recently that an Internet search engine’s thumbnail-size, low-resolution copies of copyrighted photographs on the Web fell under fair use partly because search engines are very important to the Web. (The case is on appeal.)
Permission on Demand
In some cases, a copyright owner has no choice but to grant you permission to use a work as long as you fulfill certain requirements. For instance, once the owner of a song permits someone to record and publicly release a recording of the song in the United States as, say, a CD or cassette (but not as part of a film), then the copyright owner must grant you a license to record your own version of the song if you get a “mechanical license” from the owner. You must comply with certain procedures to get the license, and you’ll have to pay a royalty for each recording of the song that you distribute.
Copyright owners of sound recordings don’t normally have the right to prevent others from playing the recording in a public venue (such as a nightclub or restaurant); only the owner of a song on the record has this right. The situation is different for digital performances of recordings, however, such as digital radio broadcasts on the Internet. Copyright owners of the sound recording can prevent you from publicly playing most of their recordings, unless you qualify under the law as a Webcaster. In that case, the copyright owners must grant a license if you, as the Webcaster, fulfill certain requirements and pay a fee. If you’re not a Webcaster, you’ll need permission from both the song and the sound-recording owners to use their work on the Internet. (See the sidebar “Tracking Down the Owner” for help in finding copyright owners.)
The Final Judgment
If you think that copyright protects a work you want to use, and you don’t want to risk making a mistake about fair use or aren’t sure if the work falls into the public domain, then ask the copyright owner for permission (or simply notify the owner and pay a royalty or fee if the law permits). All too often, when a court ends up deciding the question of which parties have the right to use a work, you’ll pay tons of money for litigation.
To stay on the safe side, check with a copyright lawyer before using anything without permission. If you’re using material that’s copyrighted outside the United States, make sure the attorney is experienced in international transactions. The money you spend up front for legal advice could save you money, time, and emotional distress down the line.
SUSAN P. BUTLER is a new-media and entertainment attorney in Northern California. She writes a monthly legal column for ZDNet’s Small Business Channel and is currently completing The E-business Legal Kit for Dummies (IDG Books Worldwide), due out this fall.