An Overview of Video Game Publishing for Developers

An Overview of Video Game Publishing for Developers

By Bryan Wasetis. Bryan is an entertainment and media law attorney that focuses on publishing, distribution, and production of digital and physical media. Bryan helps indie game developers negotiate publishing agreements and obtain development funding for their games.

This article aims to give you a general understanding of what video game publishing is, what publishing agreements cover, and issues that video game developers should be aware of when negotiating publishing agreements. If you are familiar with publishing generally, you can skip down to the “Video Game Publishing Agreement Issues” section for a breakdown of contract issues.

Publishing a video game through a publisher can create great opportunities for a video game developer that they might not have had if they released the game on their own, including benefits such as additional funding for the development of the game, marketing support, platform distribution, and generally helping the game reach the largest audience.

But publishing agreements can also be overwhelming and complicated for developers regardless of their experience in the industry. The contracts usually cover more than just distribution of the video game and go into issues such as marketing activities and expenses, control over sequels and merchandise, and ownership of intellectual property (“IP”). Also, small differences in wording can have a significant impact on how the contract is interpreted as we’ll cover later in this article.

To make sure that the developer is treated fairly and to help ensure the success of the publishing relationship, the publishing agreement should accurately reflect the understanding and goals of both the developer and publisher.

Don’t be afraid to ask questions! As a developer, you should definitely be asking potential publishing partners any questions you have about the publishing agreement. And if you don’t like something in the agreement, ask for changes to make it more agreeable to you. Any good publisher will be expecting this and will work with you to accommodate any concerns you have.

What is Publishing?

The term “publishing” means the act of producing and distributing content. Traditionally, this meant printed content such as books and newspapers but now covers many types of media, including video games. For video games, a “publisher” will at a minimum help produce and distribute the video game.

A publisher may also ask for additional rights, including the ability to find other opportunities to commercially use the game content. For example, a video game publisher will license or sell copies of the developer’s video game but may also look for opportunities to make a movie based on the video game or create merchandise for the game. Many of these additional rights are discussed below.

Who is a Developer?

A developer is the person or business that is developing and producing a video game. The developer usually owns the rights to the video game but, in some situations, the publisher may own some or all of the rights to the game. The developer can be a single person or a team of people working together, and may be a legal entity such as a limited liability company or corporation.

If a developer has not contracted with a publisher to publish its game, then the developer is actually acting as its own publisher during that time. This is called “self publishing”.

What is a Publishing Agreement?

A publishing agreement is the contract that the developer enters into with a publisher to allow the publisher to use the video game, including its copyrights, and release the video game to the public. The publishing agreement usually also allows the publisher to act on behalf of the developer to negotiate deals for the video game, such as platform deals to distribute the game through marketplaces such as Steam or on hardware such as Nintendo Switch.

To publish a video game, the developer needs to grant certain rights in the video game to the publisher, including rights held as a copyright owner or a licensee to any licensed materials used in the video game. If you have licensed any material for your game, you should make sure your license allows you to sublicense the material to third-parties since your publisher will also need to use that material.

US copyright law grants the copyright owner of a work the exclusive rights to make copies, distribute, display, prepare derivative works of, and perform the work. For a publisher to be able to release a video game, the developer needs to at least grant the publisher the right to make and distribute copies of the copyright protected video game.

The developer may also grant additional rights such as a derivative work right to create sequels or merchandise, or a performance right to stream gameplay. These additional rights are usually granted in exchange for additional benefits from the publisher. For example, merchandise and performance rights for a commitment by the publisher to a big marketing campaign.

The grant of rights is usually done by licensing where the developer keeps copyright ownership of the video game and grants the publisher rights to the game. Occasionally, the copyright rights may be given by an assignment, which means the developer actually transfers ownership of the copyright in the video game to the publisher. The route you take is usually dependent on how significant the publisher’s assistance ($$$) with the game will be.

If you haven’t reviewed a publishing agreement before, both Raw Fury and Neon Doctrine have publicly released their publishing agreements, which are worth checking out since they are good examples of the types of template agreements you’ll receive.

Video Game Publishing Agreement Issues

Now that we’ve covered the basics, we’ll go over a few of the major terms of a video game publishing agreement and what to keep in mind when negotiating the publishing agreement.

Most deal terms are often agreed on between the developer and publisher after pitching the game and talking about publishing options, but both the developer and publisher should make sure that the terms are stated accurately in the contract. A developer may receive the publisher’s standard template contract without any changes to match the conversation so far, which means that the developer is responsible for calling out the changes that need to be made in order to match the terms that everyone already agreed on.

As a general rule, the more rights the publisher receives, the more benefits the developer should receive in return. This is often in the form of increased development advances or better revenue sharing terms.

Identify the Property and Development Milestones. The contract needs to identify what video game property will be published through the publishing agreement. Is it a single game or does it include sequels or spin offs such as games that involve the same characters? Does it include downloadable content (DLC) created later? Does it include all games made by the developer within a period of time? The agreement also needs to state what and when the developer will provide to the publisher during development to show it is making progress on the video game. This is normally done through deliverables called “milestones”, which are builds of the game that must be provided to the publisher by a specific date and include the specifications stated in the milestone. Milestone specifications should be very clear and not subjective in order to avoid any disputes that a build doesn’t meet the specifications.

Watch for: broad definitions for the video game property, including the IP, subject to the publishing agreement.

Identify the Scope of Publishing. The scope of publishing means where and how the publisher can publish the video game, and includes terms such as exclusivity (whether the publisher has the exclusive right to publish the game), the term of publishing (how long the publisher is allowed to publish the game), the publishing territory (the geographic locations where the game can be published, which is usually worldwide due to the nature of video games), and the platforms for distributing or playing the game (the hardware and software that must support the video game such as specific consoles, and digital retail stores such as Steam or Windows Store). The agreement should also be clear on whether the developer is responsible for delivering all versions of the game for each platform or if the publisher can contract with other developers to create those versions (called “porting”).

Watch for: a commitment to publish on a single platform but exclusive rights granted for additional platforms.

Game Ownership. Who will own the video game and content created for the game? Usually, the developer will retain ownership of the video game and exclusively license the game to the publisher for a period of time. But some publishing arrangements may require that the publisher own the video game and IP. Publisher ownership of IP happens more frequently when the developer is contracted to create a new video game property and not one that the developer has already started working on. The publishing agreement should also clearly identify any licensed material included in the game. If the developer has included licensed content in the game, such as licensed music for the soundtrack (composers sometimes keep ownership of the music), the developer will need to make sure its license to the content is able to be sublicensed to the publisher.

Watch for: situations where you are forced to transfer ownership of the IP such as during termination or breach of contract.

Merchandising and Ancillary Rights. Merchandising rights allow the publisher to create merchandise such as apparel and toys based on the video game. The publisher will probably want merchandising rights, which overlap with marketing rights for things like promotional material, but watch for exclusivity or restrictions there since the developer will likely want to retain some merchandising rights. Ancillary rights allow the publisher to create new products such as books or movies based on the video game being published. Ancillary rights are often restricted with a right of first refusal or first negotiation for the publisher, which usually require the developer to at least offer the publisher the opportunity to create any new products that the developer is pursuing. For example, a right of first refusal for a movie means that the developer must ask the publisher if it wants to produce the movie, which the publisher may accept or refuse. If the publisher refuses the opportunity, the developer can ask other companies to produce the movie. The way any revenue from merchandise and ancillary uses is shared also needs to be accounted for in the publishing agreement.

Watch for: exclusive rights to any merchandising or ancillary rights, and whether revenue from the uses will be applied towards any recoupment by the publisher.

Royalties and Revenue Share. Royalties are amounts paid to a rights holder for a license. Video game publishing agreements tend to use the term “revenue share”, which is a more general term for sharing in profits earned from a video game. Revenue shares are often structured in tiers that adjust to be more friendly to the developer based on higher sales figures. For example, a 70/30 split in the publisher’s favor until a certain point where it switches to a 70/30 split in the developer’s favor. Revenue share terms, especially how revenue is defined, need to be reviewed very carefully because the wording can have a significant impact on the amount of money that the developer receives. For example, whether payment is from “gross” revenue (meaning based on all income received by the publisher) or “net” (based on income after specific expenses are deducted). If revenue is based on net terms, any deductions should be reasonable and clearly identified, and you may want to limit some deductions, such as marketing expense deductions, to a certain dollar amount. You will also want to make sure the agreement accounts for all income streams, including revenue received from merchandise, ancillary rights, and sequels or other versions of the game.

Watch for: exclusive rights that are granted to the publisher but are not accounted for in the revenue share since that likely means the publisher will keep all of that revenue.

Advances and Recoupment. Advances are amounts paid by the publisher to the developer as funding to develop the video game. The total development funding is usually split up into advances for each milestone and dependent on the publisher’s receipt and approval of the applicable milestone. Advances are then usually recouped by the publisher from sales or other revenue received by the publisher from uses of the game. Recoupment is generally calculated from all sources of revenue from the game, but you can have different payment structures where some revenue streams aren’t put towards recoupment, which may be good or bad for the developer depending on which revenue stream you’re accounting for. For example, the developer may want to retain all revenue received from its merchandising activities rather than have that go towards recoupment.

Watch for: recoupment terms that heavily favor the publisher, such as recoupment that only comes from your share of the revenue.

Publisher Commitments. The developer will want the publisher to contractually commit to certain things such as promising to actually publish the game (this is often initially not included in publishing agreements) and to provide marketing support. Publisher commitments in the agreement give the developer legal options such as terminating the agreement if the publisher fails to follow through since the publisher will be in breach of the contract. The publisher should be required to publish the game by a certain date or within a window of time and, if they don’t, publishing rights should revert back to the developer. Marketing commitments, such as creating and releasing trailers and advertising, should also be clearly stated along with how the publisher will account for these marketing expenses.

Watch for: loose statements that the publisher might provide certain support or has a right to provide the support instead of actual contractual commitments to provide the support.

Post Launch Support. Post launch support is a period of time after the game is released that the developer will be available to help with things such as patches and bug fixes. This is often during the time that the publisher will be recouping any advances or expenses, which means the developer needs to account for cash flow issues during the support period. This can be done several ways, including through the initial or subsequent advances, having the developer be paid on an hourly or other basis during the support period, or limiting the type of support provided by the developer to only serious issues.

Watch for: long or ongoing support windows, especially when no additional funding is provided or you aren’t yet receiving any game revenue because the publisher is in a recoup period.

Developer Approval Rights. Approval rights give the developer the right to say “yes” or “no” to certain actions by the publisher. You may also see consulting rights, which require the publisher to talk with the developer about the action but the publisher ultimately decides what to do. The developer will want to retain approval or consulting rights on certain publisher actions, including rights to approve marketing assets or merchandise, expenses, the pricing structure of the game such as initial sale price and discounts, and any changes made to the video game. The developer may also want approval rights for any sublicenses to third-parties, especially sublicenses to affiliates of the publisher (affiliates are companies that are owned by the publisher or under “common control” with the publisher such as both businesses having the same owners). A sublicense to an affiliate might allow the owners of the affiliated businesses to receive revenue from the game at multiple points in distribution before the revenue is included in the payment calculation for the developer, which reduces the amount of money the developer receives. Developer approval rights can help account for these issues.

Watch for: only receiving consulting rights when approval rights are more appropriate for you (for example, approval rights on major marketing assets such as trailers).

Publisher Approval Rights. The publisher will likely want to have approval rights on milestone deliveries such as specific builds of the video game. Often, this is to make sure the game is on track for the agreed upon publication date, but a publisher may also want approval rights on the overall concept and mechanics of the game. If this is included in the agreement, you will want to make sure the approval process is clear and tied to objective specifications for the game such as the milestone delivery descriptions or any included game design document, and avoid anything subjective since you probably don’t want a publisher rejecting something because they just don’t like it.

Watch for: strict or subjective approval rights for milestone deliveries that can easily put you in breach of contract.

Termination and Post Termination Rights. Termination is how the contract and publishing rights can be ended. Publishers will often want flexibility on how they are able to terminate the publishing agreement and may want the ability to terminate without cause, meaning at no fault of the developer. The developer will want to make sure that termination, especially no cause termination by the publisher, does not leave them in a financially vulnerable position. You can try negotiating for a “kill fee” to account for this, which requires that the publisher pay some portion of the fees that otherwise would have been payable to the developer had the publisher not terminated the agreement. The developer will also want the ability to terminate if the publisher is not fulfilling its side of the agreement, especially for breaches to commitments to actually publish the video game or make payments to the developer. Post termination rights to the game also need to be clearly stated, which may include the publisher being able to continue to fulfill contracts entered into before termination, or the developer regaining all rights to the video game and being able to find a new publisher.

Watch for: a lack of termination options for you, or termination rights for the publisher that put you in a vulnerable position (for example, requirements to fully repay any advances on termination, or the publisher retaining a percentage of game revenue even after termination).

The Takeaway

Remember that the contract is negotiable! Review your publishing agreement carefully since small words or changes can have very large consequences. For example, the term “may” only means that someone has the option but not the obligation to do something, but “shall” is a term that legally requires someone to do something.

And don’t be afraid to ask your contact at the publishing company questions or ask that they talk through the agreement with you. Nothing is truly “industry standard”, and making sure everyone is on the same page is helpful for everyone involved and can help avoid contract disputes later.

Thanks for reading!

New Copyright Registration Option For Social Media, Blogs And Online Articles

Registering for copyright protection can be especially difficult and expensive for modern writers. Rather than the old school model of publishing a single book, many independent writers now make a living publishing short pieces (think social media or blogs) in frequent bursts. Preparing a new copyright registration form — and paying a fee — every time you add a new post just isn’t realistic, but neither is leaving your livelihood open to getting ripped off. As I previously wrote, there are work-arounds involving group registrations, but those can be clunky and may not provide the full protection you’re seeking.

Thankfully, the Copyright Office continues to fight its way into the 21st century. Beginning next month, you can use a brand new application — the GRTX, or “Group Registration for Short Online Literary Works” – specifically to register collections of short, online writings. Using the new application authors will be able to register up to 50 posts using just one form and for a single, $65 application fee.

WHAT TYPES OF WORKS QUALIFY?

SHORT WORKS BY THE SAME AUTHOR

Because the new registration is designed for short works (it’s in the title), each post must contain between 50 and 17,500 words. Basically, the Copyright Office is trying to find a balance between works that are too short to qualify for copyright protection and self-published novellas that should be registered using a traditional application.

In keeping with the intent of helping independent writers, you also can’t use this new registration if the posts are works for hire. That may be an issue if you’ve set up an LLC or corporation for your business, but most independent authors can identify themselves as the author and then assign the rights to the entity. This issue may be complicated, however and could have ramifications for your entity or taxes, so it’s probably worth discussing with an attorney first.

Each of the posts also must have the exact same author or joint authors. So, for example, you can register 50 posts written by John or 50 posts co-written by John, Paul and George, but you can’t combine posts co-written by John, Paul, George and Ringo with posts that any of them wrote solo.

THREE MONTHS OF POSTS

While you can register up to 50 posts in one application, they all must have been originally published in the same three calendar months. Note that’s calendar months, which run from the first day of the first month to the last day of the last month (i.e., January 1 through March 31). Also, this can be any three month period, so you can finally go back and register all of your old posts, too, in three-month groups.

ONLINE POSTS ONLY

The new registration form is specifically intended for online works, which until now have mostly fallen through the cracks of the previous group applications designed for traditional media such as newspapers or magazines. So in order to qualify for the new application, each of the posts must have been originally published online. It’s OK if you also distribute via hard copy or email, as long as each work was distributed through those methods after or simultaneously with the online publication. If you publish behind a paywall (subscription, individual purchase, etc.), that’s OK too.

If you read my prior post, you may recall that the Copyright Office has been somewhat cagey about whether online distribution counts as publication. Essentially, they let you decide if free online works such as blogs are “published.” That hasn’t changed, but for purposes of this registration you need to take the position that the works are published. That’s usually not going to be an issue, since labeling a work as “published” has several advantages anyway, and previously the most common reason to call works “unpublished” was to try to fit into one of the other group registration methods.

TEXT ONLY

One other potential gotcha – the GRTX registration only covers text, not photographs or illustrations. That will limit its usefulness for things like Instragram posts. However, you’re allowed to combine the GRTX registration with the existing group registration for photos. Say you have 50 posts with photos and text, and you want to register everything. You can do one GRTX registration to cover the text (note in the application that you’re excluding the photos), and a group registration to cover the photos (note that you’re excluding the text). In fact, because a group photo registration can cover up to 750 photos published within the same year, you may be able to combine a single photo registration with four GRTX registrations (though it’s better if you do your registrations at least every 3 months rather than wait a whole year).

WHAT CAN’T BE REGISTERED

Because of these limitations, the GRTX application won’t cover everything you may be posting online. For example, you won’t be able to use it for:

·      Podcasts

·      YouTube videos

·      Websites (the whole thing, not just posts or articles)

·      Emails or email newsletters

·      E-books longer than 17,500 words.

Emails may be particularly concerning if you primarily “post” via subscribed email blasts, but the Copyright Office has specifically banned emails from the GRTX application, so the best option is to “publish” on your website either first or simultaneously.

TIPS FOR PREPARING THE GRTX APPLICATION

The new application form itself isn’t out yet, but the Copyright Office already provided some instructions for completing the process. Because the process is still new, you should be very careful about following all instructions.

The GRTX application will only be available through electronic registration (no paper applications), so if you don’t have a login yet for the Copyright Office’s eCo system, you’ll need to get one (it’s free).

As part of the application, you’ll need to provide a list of the works, including each of their titles, publication dates and word counts, which you can get from a word processing program. Although you can prepare your own list ahead of time, the Copyright Office is including a fillable form as part of the application that will automatically check for common errors, like word counts that are too high or too low, or publication dates that span more than three months. If you’re at all unsure about the process, you probably want to use that fillable form, at least the first couple of times.

If you create your own list, make sure that it includes everything required, and that the filename of the list contains both the title of your group of works (which must match the title you put on the application) and the case number you’re assigned when you start the application. That will be automatically generated and listed at the top of the online application once you’ve started. If your title has a character that can’t be used in a filename, either leave it out or spell it out (i.e., $ becomes “dollarsign.”)

You’ll also need to provide an electronic copy of each of the works on the list, and there are some specific requirements for that as well. Each post needs to be its own digital file (PDF, preferably) with a filename matching its individual title on your list. This does not have to be a screenshot — in fact, it’s better if it isn’t. Since you’re only registering the text, the Copyright Office doesn’t care how the post looks. Just cut and paste the text of the post into a new PDF or Word document. You’ll then upload a single ZIP file that contains all of the works and the list – don’t upload each file individually.

As mentioned above, you can’t use the GRTX application if you write as a work for hire, but you can transfer your works to an entity after the fact. However, even if you do that, ignore the transfer for purposes of the application. The Copyright Office wants the copyright claimant (i.e., the owner) to be the same as the author (i.e., the person who actually wrote the post) when you fill out the form. So list the author(s) as the claimant(s) for now, and if need be, record a transfer of the copyright separately.

One final issue unique to blog posts – if your post includes comments, you have to note on the application that you are disclaiming the comments by others. You can include your own replies as part of the work, as long as you don’t exceed the word count.

NO MORE EXCUSES

If you’re trying to make a living as an online blogger or writer, your work is your business, and you should be protecting it. Using the GRTX application, even fairly prolific authors can now get all of the advantages of copyright registration with a single application filed once a quarter. You absolutely should consider making copyright registrations a part of your regular routine. And maybe register your old materials while you’re at it.

DWP 2020: Community Organizing

Aspect at Design Week Portland 2020

Join Aspect attorney Bryan Wasetis and the Oregon Volunteer Lawyers for the Arts during Design Week Portland for a conversation on community organizing. The event will cover issues like starting and running a nonprofit and using artwork for good.

August 5th. Free event.

Register here:

https://designportland.org/festival/2020/schedule/ovla-office-hours

Copyright Registrations For Multiple Works

If you haven’t been keeping up with your copyright registrations – or if you’ve never registered your stuff at all – you may have a sizable back catalogue of content to protect. Or maybe you create new content all the time, and are trying to figure out how to register it without going broke on fees. Either way, a common question is whether you can register multiple works on the same registration form, to save time, money or both.

Unfortunately, the default answer from the Copyright Office is that every creative work should be separately registered. However, there are several exceptions that allow you to register a group of certain types of works on a single application, particularly if you’re a musician or a photographer.

THE KEY QUESTIONS

In order to figure out if you can take advantage of these exceptions, there are a few important questions you need to answer about the works you’d like to register:

• First, are any of the works published? The term “published” has a special meaning in copyright law, which essentially boils down to whether copies of the work were distributed to the public. Public display of a work doesn’t count, so showing your work at a gallery, for example, would not move it to the published category, unless you also sold or handed out copies. What about posting your work on the Internet, you ask? Good question, and the Copyright Office won’t really answer it for you. If you actually encourage people to download copies (for example, by including a way to download a PDF or a music file), then you’re probably publishing the work. But if you’re just posting a photograph, a blog post or a video on a website or social media, then the Copyright Office takes the position that you get to decide if you published it.

  The main advantage of calling a work “unpublished” is that several group registration options are only available for unpublished works. But there is one, specific situation where you may want to call it published, even if it means filing multiple applications – if you posted the work less than three months ago and someone is already copying it. By law, if you register a work within three months of publication, you still get attorneys’ fees and statutory damages for any infringement. But unpublished works only get those benefits for infringements that occur after registration (this is one reason why copyright attorneys encourage artists to do copyright registrations at least every three months).

• Second, if the works were published, when where they published? This matters because some registration options are only available for groups of works that were published together, or within a certain time period.

• Third, who is the author of each work? The “author” is the person who actually created it, i.e. who wrote it, painted it, or took the photo. If it was created as a work for hire, the author is the employer. The author matters because some group options are only available if all of the works have the same author.

• Fourth, who is the copyright “claimant” of each work – the current owner of the copyright? This will be the same as the author unless the author gave his or her rights to another party (such as a publisher or a hold-out company). Like the author, the claimant matters because most group applications only cover works with the same claimant.

Depending on your answers to these questions, you may have several options for registering a group of works at once (and paying only one fee):

OPTION #1 – GROUP REGISTRATION

For unpublished works, the easiest option is probably going to be the Copyright Office’s group registration application. Using this option, you can register a group of works on a single application, without many of the restrictions of the other options. Unfortunately, the Copyright Office now limits you to a maximum of ten works per application (except for photographs – that limit is 750). This may not offer a lot of solace if you need to register hundreds of works, and it’s of no help if you’ve been selling or distributing your items (again, the registration only covers unpublished works). In addition, all of the works must have the same author, same copyright owner, and must be in the same copyright class (literary works, visual art, sound recordings or performing arts).

There is an exception to this last requirement for musicians – you can register up to ten sound recordings and the musical compositions for those songs on the same application, as long as all ten songs are on the same album and the copyright owner for everything is the same. This won’t work if the compositions and sound recordings are owned by different parties, but if you’re self-releasing your work, this option lets you do a whole album in one fell swoop.

OPTION #2 – COLLECTIVE WORKS

If you have significantly more than 10 unpublished works, you may be able to combine some of them as a “collective work.” This type of registration applies to art that is combined in a new, creative way, such as an anthology, or a mix-tape. The registration is intended to protect the creativity in the selection and arrangement of the pieces, not the pieces themselves. However, the registration does cover the individual works if the individual and collective works all have the same owner, none of the individual works were ever published or registered, and the individual works are not already in the public domain.

Preparing a collective work registration is not as simple as the group registration, because the collective work itself has to be creative – if you just slap twenty unrelated pieces together in alphabetical order and call it good enough, the Copyright Office may reject the application. Collective work registrations also have another downside – the entire collection is considered a single work for statutory damages purposes. Statutory damages are essentially penalty awards that you can receive if you later win a copyright infringement lawsuit against a copycat. Normally, you’re entitled to a separate award for every work that was copied, so if someone copies twenty of your short stories, you get twenty statutory damages awards (at between $750 and $30,000 per). But if you combined those twenty short stories in a single collective work registration to save filing fees, you get just one award, not twenty.

OPTION #3 – SINGLE UNIT

This registration option is available if you physically distribute some of your pieces together, regardless of whether they are published or unpublished. For example, a box of mixed greeting cards, a matched jewelry set, or a CD that also has original album work and liner notes. Again, the copyright claimant for each individual component needs to be the same, and if the works were ever published, they must have been first published together, at the same time — if you combine new works with older works, the application may be rejected. Also, unlike collective works, this registration only applies to items that are physically distributed (no digital distribution) to the public.

OPTION #4 – PHOTOGRAPHS

The Copyright Office allows photographers to register larger groups of their works at once, though there is still a hard cap — 750 photos on a single application, published or unpublished (and you can’t mix published and unpublished photos on the same application). All of the photographs on the application need to have the same author and the same claimant, and the registration only covers photos, so you can’t include captions, artwork, etc. If the photos were published, you can only include ones that were published in the same calendar year on the same application.

OPTION #5 – SERIALS, NEWSPAPERS, NEWSLETTERS AND PERIODICAL

Finally, the Copyright Office still provides registration options for several more traditional “group” works, such as newspapers and magazines. These probably won’t be useful to the average small business or individual artist, but if you’re putting out one of these forms of media and want to make sure your work is protected, you still can.

BOTTOM LINE - HAVE A PLAN FOR REGISTERING YOUR WORKS, EVEN IF YOU WAIT TO ACTUALLY REGISTER THEM

As you can see, once you’ve started to sell your works to the public, your options for registering them become more limited. So it’s a good idea to make a plan for how you will register the works, even if you decide you’re going to wait to actually pull the trigger on the registrations for now. Registering the works before they’re published gives you the most options, but it’s certainly not necessary in every case, and even something as small as releasing items in bunches on the same date can give you more flexibility and potentially save you significant money in registration fees in the long term.

Going Remote - Legal Considerations For Streaming Video And Audio Presentations

Social distancing, self-isolation and sheltering in place – welcome to 2020. As everyone tries to do their part to flatten the curve, many creative professionals and small businesses are being forced to move parts of their business to streaming and on-demand video. Networking events, client presentations, webinars, and professional education will be remote for the foreseeable future. Services like YouTube, Facebook Live and podcasts are great for this arrangement. But while adapting to the technical and creative challenges of online video is important, one thing that is often misunderstood is how or even whether you can legally use copyrighted works – like music, video clips, and photos and graphics – in your new creations. Incorporating these in a video or podcast is legally different from using them in person, and you need to make sure you have the right permission to do so.

THE RIGHT COPYRIGHT RIGHT

Let’s take a quick step back. What we consider a copyright is actually a collection of several different rights, what copyright lawyers often analogize as a “bundle of sticks.” Each stick represents the exclusive right to do something specific with regard to the work. For example, one “stick” is the exclusive right to publicly perform a work, and a different “stick” is the right to make copies.

What’s important to remember is that, although these rights come in a bundle, each stick can be sold or licensed separate from all of the other sticks. That matters because many licenses only cover one or two of the sticks, not all of them – so the license you have to use music or a photograph in your live presentation, for example, may not include online streaming or recorded video.

When you are using creative works live, in-person, this usually falls under the public performance right. However, embedding music or images into video or audio, whether live-streamed or recorded for playback, involves a completely different right, the right to make “derivative works.” You need to make sure that you have a license for derivative works, not just public performance, or you need to switch to works in the public domain.

MUSIC

As I’ve written about before, recorded music actually contains two different copyrights – the rights to the composition held by the song’s writer(s), and the rights to the sound recording, usually held by the record label. You can’t integrate a recorded piece into your video or audio without permission to use both. Traditionally, the rights to the composition are called “sync rights” (because you are synchronizing the music with the video) while the rights to the recording are called a “master” license (because you are licensing the use of the master recording, as opposed to the composition).

Businesses that play music in public spaces should already have performance licenses. But those are public performance licenses, and typically don’t cover using the same music in videos or recorded audio like podcasts — even live-streamed videos from your business in which that music is just playing in the background as you record! In addition, through a quirk of copyright law, sound recordings didn’t traditionally require public performance licenses, but they are required for derivative works, so an ASCAP or BMI license, for example, may not deal with the recording at all.

Obtaining sync and master licenses used to be a problem reserved for the film and TV industries, but with the rise of YouTube and Twitch, several licensing companies are stepping up to provide user-friendly ways of obtaining the right licenses or royalty-free alternatives, including some options specifically designed for use in video streaming. Alternatively, use music in the public domain (a list can be found here) — but you need to make sure that both the composition and the master recording are in the public domain. If someone records a new cover of an old song, that new master gets its own copyright.

VIDEO CLIPS

Getting permission to use video clips from anything other than public domain works can be expensive and difficult, if only because there are fewer companies and societies to work with to get the right permission from the right owner. Unless you plan on relying on fair use – and there are legal and practical problems with doing so (see below) – you should be extremely cautious in using any video clips that you don’t create yourself, obtain from a reputable stock footage company or that you are sure are in the public domain.

PHOTOS AND GRAPHICS

There is a persistent misunderstanding that anything that can be found on the Internet is free to use – and because photos and graphics are so easy to copy from other websites, they are a frequent victim of copyright theft. Unless you qualify for fair use (see below), you absolutely need permission to use an image in your online videos, or you need to stick to images you create yourself or that are in the public domain. If you already obtained a license to use an image for your in-person presentation, (1) good for you, and (2) because licenses for photographs and graphics are often pretty broad, your license may already cover online video. You do need to check, though, and if it doesn’t, either get a new license or pick a new image. There are numerous ways to obtain licensed works for free or for a small fee, including through services such as Unsplash and Gettyimages, or through museums that provide royalty-free digital copies of famous works.

However, be aware that just because the image is licensed, the contents of the image may not be OK to use. Some photographs on Unsplash, for example, are photographs of otherwise copyrighted works. For example, if someone takes a photo of a painting, you may be getting permission to use the photo, but you don’t have permission to use the painting – which means the permission you do have is pretty worthless. The same goes for images that show a trademark or a logo or even a person – unless you have permission from the trademark owner, you can’t assume that the photographer got permission for you.

FAIR USE

Fair use is just as applicable to streaming and video as it is to live presentations. If your video is for educational, non-commercial purposes, there’s a good chance that your use is OK. But, fair use is never black and white. It is a myth that it is “fair use” if you use less than a certain number of seconds of a song or a clip, or if you don’t make any money off of the video. Determining fair use is case-by-case, weighing a number of factors. And moving a presentation online where it can reach a larger audience, or be played on demand can change that calculation, so even presentations that qualified as fair use when done in person are no longer fair use. The bottom line is that you need to do a careful analysis before simply assuming that you’re covered by the fair use doctrine.

PRACTICAL PROBLEMS - COPYRIGHT STRIKES AND BANS

Setting aside the legal and moral issues associated with getting the right permission, there are practical problems to consider when using copyrighted works in online video and audio.

For one thing, your streaming platform is now monitoring what you do. You may have rolled the dice before that your live performance wouldn’t attract the attention of copyright holders, but Facebook, YouTube and other streaming hosts use sophisticated algorithms to monitor feeds for copyright infringements. Once the algorithm discovers that you’re using a copyrighted song, for example, the host may automatically mute or cut off your stream (which probably won’t go over well with your clients or audience), and they may add a copyright “strike” to your account, which can lead to a permanent ban.

If you do have a license, you need to make sure that your streaming platform knows about it ahead of time, otherwise they may assume your use is illegal. Check if the company that you purchased your license from will notify online hosts of your license (and check reviews to see how well this notice actually works). Paying for permission makes little sense if you can’t actually use the work.

Finally, if you’re planning on relying on a fair use defense, be prepared for problems. As a practical matter, Facebook, YouTube, etc. can’t make fair use decisions ahead of time – they will most likely just block or take down your video and maybe let you try to argue “fair use” after the fact to avoid a ban.

FINAL THOUGHTS

Current circumstances are unequivocally requiring sacrifices now, but they’re also creating a new future. As people are forced to learn how to use online video and remote working tools, those tools may be here to stay even after life returns to normal. For creative professionals and small businesses, it’s an opportunity to show off your skills in a whole new medium. You shouldn’t let legal concerns dissuade you or get you inadvertently banned from your platform. Just be aware of the issues and make the right choices, both to protect yourself and to protect all the other creatives who rely on licensing income.