Copyright in Characters: What Can I Use? Part II

First, thanks to everyone that read and commented on the original post! The comments were great and touched on a few subjects that weren’t discussed in the post, so I wrote this follow up post to expand on a few of the copyright issues that were brought up. I’ll also be posting Part III soon, which will cover trademark issues.

Copyright Law

Let’s first dig a little deeper into copyright law:

I explained in the previous post that copyright is a form of protection given to authors of “original works of authorship”. The author is typically the person that makes the work, but can also be an employer if the work is considered a “work made for hire”. I won’t discuss “works made for hire” in this article, but you can read more about that on the Copyright Office’s circular on works made for hire.

The works need to be “fixed in any tangible medium of expression” for copyright protection, which means that the work needs to be recorded somehow – essentially, something more than an idea. A painting satisfies the requirement, as does a video or audio recording, and so do video games (although video games have many different copyright involved).

Copyright is actually a bundle of rights that give the author of the work the exclusive rights to reproduce (i.e. make copies), prepare derivative works (i.e. make new works based on the original work), display, distribute, and perform the protected work. These rights are granted automatically to the author but registering the copyright has certain advantages, which are discussed in the Copyright Office’s circular on copyright basics.

Copyright, along with trademarks and patents, is a type of intellectual property. This means that the rights granted to an author are treated as property that can be transferred by the author in a number of ways, such as licensing and assignments. Also, each right is an individual right that can be transferred on its own.

For example, an artist can allow someone to show the artwork in a gallery (display the work) but not make prints of the work (reproduce). Or, keeping in line with characters, a game developer can allow a publishing company to distribute copies of the game, which include the individual copyright in the character itself, to different platforms such as Steam (reproduce and distribute), but not allow the publishing company to make new games based on the original game or change the character in some way (which would be making derivative works).

What doesn’t copyright protect?

Copyright is limited in its scope and specifically does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery”. Patent law typically covers these instead of copyright.

Copyright also doesn’t protect names, titles, or short phrases, which is explained in this Copyright Office circular. However, these can be protected as trademarks, which I’ll explain in Part III.

In the games and characters context, this means that things such as game rules, game mechanics, and basic plot are not protected by copyright. Nor does copyright protect the name of the game or character names. The Copyright Office has a helpful article on the subject that’s worth reading.

Copyright and Fair Use

We’ve covered what copyright protects and what it doesn’t, but sometimes works that are protected by copyright but can still be used in certain situations defined in the “fair use” doctrine.

Fair use is a legal doctrine that permits limited use of works protected by copyright without requiring permission from the copyright holder. However, fair use is a defense to copyright infringement, which means a jury in a federal lawsuit must answer the question as to whether the use is fair use (i.e. you’ve already been sued). That’s why I always recommend seeking a license first.

Fair use comes in many flavors. The most typical examples are commentary, criticism, and parody. To determine fair use, Courts look at the following factors:

• The purpose and character of the use, including whether such use is of a 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.

In the character and game context, fair use is often used in order to make game commentary or critique videos. Some of the “Let’s Play” videos are good examples of this.

For the sake of keeping this article on the shorter side, I’ll refer you to this Stanford article for more examples and a good breakdown of what each of the fair use factors are supposed to mean.

De Miminis Use

In certain situations, you can also use copyright protected works in small portions without the author’s consent. This is because of a legal doctrine called “de minimis use”. De minimis use is tricky because, like fair use, there are no clear lines for when a use qualifies as de minimis and you also have to prove this in court.

The term “de minimis” is from a shortened Latin phrase that translates to “the law does not concern itself with trifles”, which essentially means in the legal context that not enough of the copyrighted work has been used to amount to copyright infringement.

This is different from fair use because de minimis use relates to uses that are so small that courts won’t bother with them, while fair use is intended to provide avenues for the public to use works in a way that would otherwise be considered copyright infringement.

In the character context, de miminis use might allow for a character to briefly appear in the background or be mentioned in a factual manner.

I hope that helps and, again, feel free to leave a comment below if you have any questions!

Read the original post, "Copyright in Characters: What Can I Use?"

Read the final post, which covers trademarks and characters.

Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.

The Consequences of Collaboration

We’re sometimes approached by artists who have undertaken a project with collaborators that have been asked to help the artist achieve their vision. However, the collaborators hadn’t worked out ahead of time who will own the resulting copyright and plunge into the project, or they have only the loosest agreement. By the time we see them, they’re trying to sort out who owns the resulting rights and may even be in the midst of an acrimonious dispute. The good news is that many ownership disputes can easily be avoided by having a written agreement in place prior to the project’s start.

A prime example is a musician who has composed a piece and wants to record a demo for purposes of shopping the demo to a record label or the underlying composition to a publisher. As part of that, the musician has sought out an engineer or perhaps other musicians to assist in the recording process.

Will the collaborators have any copyright ownership interest in the composition or resulting sound recording? In the absence of an employee/employer relationship (which will not be addressed here) or agreement to the contrary, the answer could very well be “yes”.

Copyright Law

Would-be authors, regardless of artistic discipline, should be aware of when and how copyrights come into existence. Copyright automatically attaches when a creative work is fixed in a tangible medium of expression. That is, the work is no longer just an idea in the author’s head and has been committed to a format viewable by the unaided eye or with the aid of a machine. Nothing additional is required of the author.

Ownership of the copyright is fixed with the author at the same time the work is made. If more than one person contributed to creation of the work, ownership will be held jointly amongst all of the co-creators.

Legal Effects of Collaboration

In the absence of an agreement that states otherwise, any artistic contributions made to either the composition or sound recording by the collaborators would make them co-authors and joint owners of any copyrights to which they’ve contributed. This could be as simple as modifications to the melody or lyrics, the addition of a solo, or production choices made during the recording process.

So what does this mean for our musician/composer? As a co-owner of the demo recording, the collaborators would be free to make use of the materials as they see fit, other than to assign or exclusively license the copyright to another party. Further, if our solo musician plays the demo for a record label and the label decides to re-record the composition, collaborators on the composition would have an interest in the resulting royalties.

Obviously, this would be a disaster for a young solo musician as they’ve lost artistic control of what was originally their work or are splitting royalties with collaborators when they didn’t intend to. So what’s the best way to avoid these worst case scenarios?

Avoiding Co-Ownership

To that end, our musician has a couple of options to maintain ownership from the outset of the project: (1) record the demo by themselves or (2) put in place an agreement with collaborators that all of their contributions are owned by the musician.

To avoid any issues, it’s best to have a written agreement in situations where you want to completely own the final product without question or subject to outside claims. Ideally, any artist preparing to undertake a collaborative project should consult put in place an agreement assuring full ownership of the resulting works.

If an artist has already completed a project with collaborators and no agreement was in place, they should immediately try to sort out issues of ownership. In either case, it’s best to consult with an experienced attorney who can guide the process.

Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.

Creatives Ask a Lawyer

Aspect Law Group is working with Design Week Portland to bring you "Creatives Ask a Lawyer"! From DWP:

Do you know when you need a contract? Or how to register a trademark? Bryan Wasetis from Aspect Law Group works primarily with artists, designers, and makers on issues we face, like licensing and protecting intellectual property.

He's here to answer all of your burning legal questions and will be working a few responses into a column on our blog.

You can send us questions through Twitter or email.

Keep an eye out for our answers!

The Monkey Selfie

Slate published this piece recently about a selfie-taking Celebes crested macaque and the copyright law consequences of the photograph. In the article, several people weigh in on whether the photograph is part of the public domain and free to use or not. I think the analysis is spot on, but it only briefly touches on an important aspect of copyright law - how tenuous can authorship get before copyright protection is no longer granted? It's a tough question with no bright line rule.

Copyright protects "original works of authorship", which requires a minimum amount of original creative expression. For the selfie, the photographer will have a difficult time showing that the photograph was part of his creative expression since he did not intend for a monkey to steal his camera. The bar for minimum creative expression is relatively low, however, and he would have had an argument that authorship exists if he had intentionally left the camera out to achieve such photographs.

This also brings up the importance of contracts in situations like these. Had the photographer had terms of use for the photograph that did not allow for copying or distribution of the photo, he would have a breach of contract claim against the distributors regardless of whether copyright law protected the photograph.

Using Music: Do I Need Permission?

Q&A: “I’m making a video for my business that documents a project and isn’t used to sell a product. Do I need permission to use a song in the video if I credit the author of the song?” This is a great question and one that comes up often in the context of YouTube.

Copyright Law

We’re talking about copyright law because copyright protects original works of authorship fixed in a tangible medium of expression, which includes recordings of music.

As a general rule, you should always get permission from the owner before using the work for anything. Simply crediting the author doesn't get you past copyright infringement, especially since the author might not be the owner of the copyright!

Get Permission

In the US, copyright law gives the owner of a copyright the exclusive right to copy, display, distribute, prepare derivative works, and publicly perform the work. These exclusive rights can be individually granted to third parties in a license or assignment by the copyright owner, which we’ll discuss in a later post.

To use a song in a video you need to embed the audio in the video file. This involves making a copy of the song (an exclusive right) because the song file does not just transfer to the video – a copy of the song file is made when it is placed within the video file.

The song will also be performed (another exclusive right) because the audio plays during the video. Consequently, you will probably infringe on at least two of the exclusive rights if you don’t have permission from the copyright owner.

What happens if you don’t get permission?

If you’re lucky, the copyright owner will be happy you’re using the work (or just not find out) and leave you alone, but that’s a rarity considering that many owners vigilantly police their copyrights.

Most likely you will get a cease and desist letter that tells you to stop any and all uses of the copyrighted work and possibly pay the owner money to settle the issue or enter into a license. Cease and desist letters aren’t legally binding but they are a serious issue and you should consult an attorney if you receive one. Furthermore, there is no requirement to send a cease and desist letter first - you may just end up with a lawsuit on your hands.

If the alleged infringing use is online, then your service provider may also receive a “DMCA takedown notice” from the owner of the copyright, at which point your service provider is required to prevent access to the accused material. There’s a lot more to DMCA takedown notices but that’s getting outside the scope of this Q&A.

Fair Use

Okay, but do you always have to get permission?

First of all, remember the general rule: always try to get permission. But back to the question: no, you don’t always need permission, but there are very specific rules as to when you don’t.

The doctrine of “fair use” determines when you can freely use someone’s copyrighted work without permission. This includes purposes such as parody, criticism, comment, news, and education.

For fair use, courts look at:

- the purpose and character of the use, including whether the use is of a commercial nature or is nonprofit educational

- the nature of the copyrighted work (i.e. how creative it is)

- the amount used and how substantial that use is

- effect of the use upon the potential market for or value of the copyrighted work (i.e. will it make them lose money)

I never recommend that someone try using the fair use argument to start with. Going for fair use should be a last resort because it can be very difficult to prove, and the only way you can really prove it is in court, i.e., getting sued.

Even if you aren’t selling a product, a use can still be a “commercial use”. For example, a video that isn’t necessarily selling a product is still likely promotional and is not nonprofit educational.

Getting Permission

So if you're set on using a certain song, you need to look into getting permission by asking the copyright owner if you can use the work for a certain purpose. The permission doesn’t need to be in writing, but having it in writing (even just an email) helps if a dispute ever arises because you have something to look back on.

The tricky part with music is that the copyright in a recording is broken into two parts: the recording itself (the master sound recording), and the written music and lyrics (the composition) that the recording is based off of. If you want to license a recorded song, you need to get permission from the copyright owner of both the master recording and the composition.

The easiest way to do that is to go through one of the performing rights societies (ASCAP, BMI, or SESAC). They have the contact information for music publishers, which typically have the right to license the song. If it's a small band, you can try contacting them directly too.

Also, there are a few websites that have music available for this sort of thing. Some charge and some don't - depends on the type of license. If you want to try to find free music, I recommend starting with music licensed under Creative Commons, a nonprofit that provides free public licenses. You can find that here: http://creativecommons.org/legalmusicforvideos

The Take Away:

Get permission from the copyright owner by seeking out a music license. Fair use is a viable but risky alternative, and the recent Beastie Boys v. GoldieBlox is a good example of what happens when you avoid getting permission (*spoilers* GoldieBlox was sued).

Notice: This post is for informational purposes only and is not a substitute for professional advice based on a review of individual circumstances. Please contact an attorney regarding your particular legal issues.