What Every Successful Creator Needs to Know About Copyright
VidCon Panel Transcript
What Every Successful Creator Needs to Know About Copyright.
As a creator, you want to make cutting-edge videos, post them online, and attract a large fan base. But do you know how copyright can help you do that? Do you know the easy steps you can take to avoid accidentally infringing someone else’s work?
Copyright Alliance live from VidCon!
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Kupferschmid: All right, welcome everyone, to our copyright workshop. I appreciate you coming here today. Our goals, just so we all know what our goals are, are to help you understand copyright law better so you can gain the knowledge necessary to be a successful creator. I am Keith Kupferschmid, I am the CEO of the Copyright Alliance. A lot of you probably have not heard of the Copyright Alliance before. We represent close to two million individual creators, whether they’re video creators, or photographers, or software coders, or songwriters, we represent a lot of individual creators to try to educate them and advocate on their behalf, because they do rely on copyright law. We also represent over 13,000 different organizations that also rely on copyright law that represent these individual creators as well as movie studios, and record labels, newspapers, software companies, a lot of different organizations and individuals that make a career that relies on copyright and trying to make their livelihood.
Now, we have one hour here at this workshop to help you understand copyright, and clearly that’s not enough time. So we are happy to answer questions afterwards. Also, we are providing each one of you with cards that have all our information on them, our social media pages, website, etc. So I encourage you to visit our website. We’ve got FAQs there, we’ve got the entire copyright law explained in hopefully an understandable fashion. We do weekly blogs called Ask the Copyright Alliance, so if you send us your questions, we will answer them. Although keep in mind, usually when we do big events like this, we get lots of questions, so it takes us some time go through them and answer them. We also answer the questions on Twitter and on Facebook so if you want to follow us on either of those sites, as well as Instagram or LinkedIn, I encourage you to do so.
Then, because we are all about trying to encourage creativity, protect creators and incentivize creators, when you visit our website, you’ll see on our homepage that we feature photos of creators and information about them. So frankly, if you want some free publicity, just go to our website, there’s information there, and you can send us your photo. We’ll post it with some information about you. You can contact our communications people to do that.
We also have advisory boards of lawyers, creators, and academic professors to answer your questions. So we are here, ultimately, to help you understand copyright both from the creator standpoint and also from the user perspective. We understand this works both ways.
So during today’s workshop, we broke copyright information into three segments. First, I’m going to talk a little bit about copyright basics, because we understand there’ll be people in the room who know a lot about copyright, and some who know very little, and they’re trying to get educated. To try to get everyone on an even playing field, I’m going to start with some basics about copyright, fair use, the DMCA, topics like that. Then we are very fortunate to have a panel of creators that I will introduce that will talk about what they do in terms of creativity and how copyright ties into that. Lastly, but certainly not least, we have a team of copyright attorneys who, in addition to our creators and myself, will try to answer your questions. So we’ve broken up this session so that we will be taking your questions during half of it (we asked for your questions ahead of time, and we received lots of them). So I will ask a few of those right now, and then we’ll have the audience ask some questions.
In terms of copyright basics, copyright is intended to balance the interests of the creator and the user, right? So on one hand, you want to encourage creativity, and copyright gives you certain exclusive rights that allow the creator to recoup their investment of creativity and time in their creativity; and on the other hand, you want to encourage downstream uses of these creative works and build on existing works. Copyright does not protect ideas. I want to make that very, very clear. Some people think “oh, wait a minute, I came up with this idea,” and they’ll send a DMCA notice. It doesn’t protect ideas. It protects the expression of those ideas. There’s sort of a fine line in there, and a lot of people lose that and don’t quite understand that line.
Some other things you need to know: copyright protects original expression. It’s not a very high bar. Most works, especially the videos that you’re making, almost certainly will meet that standard. So they will be protected, because they require very small amounts of creativity. You do not need to register your videos with the U.S. copyright office to be protected. You are protected by copyright law as a creator the minute you create that video. So you should understand that. You also don’t need to put a copyright notice on your video. It is still protected by copyright. Now, understand there are certain legal benefits that I’m not going to get into, but maybe during the course of this hour or afterwards, we will discuss some legal benefits to putting a copyright notice and registering your work, but it’s not necessary. You’re protected the minute you create that work and you get certain exclusive rights. But there are also certain exceptions that we’re going to talk about, and the main one we’ll talk about today. And the one you’ve probably heard a bit about, and the one I would be surprised if you don’t have the most questions on, is fair use, and what does it mean?
So unfortunately, or fortunately, depending on how you look at it (maybe fortunately for lawyers, but unfortunately for everyone else), fair use is not some concrete set in stone doctrine that I can tell you “here’s what’s fair use and here’s what isn’t fair use.” It’s really on a case by case basis. You look at all the facts, and then you weigh four factors. I’m not going to go into great detail here, because we could write a book on it and we could certainly eat up the whole hour with me talking about this. But I have a feeling in the course of the questions today, we’re gonna talk quite a bit more about fair use.
The first fair use factor is: are you using it for a non-profit use or a commercial use? If you’re using it for a commercial use, like you’re making money from your videos, that’s gonna weigh against you in the fair use analysis. If you are taking a work and transforming it in someway, even if you’re using it commercially it but you’re transforming it, you’re adding something new (maybe you’re making a parody, maybe you’re criticizing it, something like that). But the work is different and most importantly it doesn’t substitute for the original work. For example, if somebody doesn’t go to look at your work and then therefore doesn’t go see the original work, that would be considered “transformative.” So under the first factor, you look at if it’s commercial or non-profit, and then even within the commercial context, is it transformative? Have you done something so different with this work (criticizing it, parodying it, etc.) that it really wouldn’t substitute for the original work and is a new work all by itself.
The second factor is the work fictional or is it a factual work? If it’s a factual work, if you’re reporting on the news of the day, let’s say the investigation of President Trump going on right now. If you were to be reporting on that, that’s going to be much more factual, so it’s going to get less protection, and you’re going to be able to use more of that work. If it’s a fictionalized work, if it’s something more creative, let’s say music for instance, then that’s going to weigh against your use of something being fair use.
The third factor is how much are you using? Are you taking the entire work? Very rarely can you take an entire copyrighted work of somebody else’s and use it and have it still be considered to be a fair use. Usually we’re talking about portions of a work, not the entire work, (for it to be considered fair use).
Then the fourth factor is, and oftentimes this is the most important, which is harm to the market. Are you harming the market to the work you are using? Let’s say you are using some music, are you harming the market to that music, or are you somehow maybe helping that market for the music? So that’s significant.
That’s all I’m going to say on fair use right now. I have a feeling there will be a lot of questions on that topic, as well as on the DMCA. Now the DMCA was created to make things work easier between copyright owners and creators, and Internet service providers. So for example, you can simply contact the Internet service provider and say “hey, someone’s pirating my work, I created this, I have a lot invested in it; a lot of time, energy, resources, creativity, and this is illegal, I want this taken down.” You wouldn’t have to actually go to court: instead, the situation could be worked out between the ISP and the creator. So there is a notice and counter-notice system that is set up whereby a copyright owner, a creator, can send a notice to somebody and say “hey, I think you’re pirating my work. I want you to take it down.” Then the person receiving that notice has the opportunity to say “wait a minute, no, I’m not pirating your work, I’m not stealing your stuff, I think this is fair use.” At that point, the copyright owner would have to sue. But the idea is to engage in a correspondence back and forth before having to jump right into the legal system and the court system.
Now there’s no doubt that the DMCA system is being used a little bit differently than I think we all intended, and not working as effectively as frankly it should be from both sides, from the user side and from the copyright owner’s side. I know that Congress is looking into how to fix this issue; but I think if we all wait for Congress to do that, we’ll be waiting for quite some time. So part of what we want to do here is educate people on fair use, on copyright law, on the DMCA, so abuses become less and less over time, and the system works more like it’s supposed to work, at least that’s what we’re hoping.
Now one thing I do want to talk about is content ID. A lot of you probably have experience with content ID. Content ID is not the DMCA. They are two different things. For instance, if you receive a DMCA notice under YouTube’s rules, that is a copyright strike against you, and then you can eventually lose your YouTube account. DMCA take down notice disputes are handled in accordance with the DMCA, the law, the copyright law. With content ID, if something you do is taken down by content ID, it’s different. You do not get that copyright strike against you. And if there’s a dispute, YouTube handles that dispute. So content ID and the DMCA are two separate things. But like I said, as this discussion progresses, we will talk about that quite a bit.
That’s my very, very brief intro. I know you probably have a lot of questions based on this info. But let me introduce our speakers here. I’ll introduce each one and then ask each one to speak.
Our first speaker is Destin Sandlin, who is an American engineer, best known for his educational video series, Smarter Every Day, which is hosted on a YouTube channel of the same name and launched back in 2007. Destin’s YouTube channel boasts four million subscribers and over 300 million views. In early 2016, Destin was one of the YouTube personalities chosen to conduct a one-on-one interview with President Obama after his final State of the Union address, and on April 28 of last year, Destin started a second YouTube channel called the Sound Traveler, in which he employs 3D audio and GoPro footage to capture and convey the experience of visiting the world’s most interesting places. So we’re very, very happy to have Destin here.
In addition, we have right next to him, to his left, Jared Geller. Jared serves as the executive producer for HitRecord, the open collaborative production company founded by actor and director Joseph Gordon-Levitt. Since 2010, HitRecord has developed into an innovative, creative community made up of over 600,000 artists from all over the world, and growing all the time. HitRecord has produced art and media in all kinds of creative formats including television, live events, short, films, books, music, and much more. HitRecord has shown work at the Sundance Film Festival and toured in live shows of dozens of sold out venues across North America. In 2014, HitRecord made its television debut with HitRecord on TV, a fresh take on the variety show format featuring a range of short films, live performances, music and animation, and eventually in the first season they had won an Emmy award for outstanding achievement in interactive media.
Then lastly, after Jared, we’ve got Gev Miron who is the leading creative force of MVH Creative Works. Since 2003, Gev has been directing and producing commercials, music videos, promos, and other short form content and has directed many projects for major companies with well known talent, including international campaigns for Orogold Cosmetics featuring Denise Richards and Brian Austin; commercials for Vine, Veera Skincare featuring actress/model Gal Gadot; Facebook’s 360 video lab featuring numerous other online talent; YouTube’s launch video of their 360 platform featuring Snoop Dogg; a virtual reality cooking series for Facebook featuring world-famous chefs Gordon Ramsey and Wolfgang Puck; and much, much more. More recently Gev has been directing virtual reality content for the immersive entertainment company Surreal. His clients include YouTube, Facebook, Nickelodeon, Universal Pictures, FOX and others; and even more recently, he won a Real Time Academy’s ninth annual Shorty award for the best 360 video for the production of the 68th Emmy Awards in 360.
So with that, let me turn things over to Destin, whose going to talk a little about his creativity and how copyright factors in. And then we’ll have Jared speak next. Destin, take it away.
Sandlin: All right, I’ll make it short. So the value I can add to this room is I make videos that usually have a unique cinematic look. They’re slow motion videos, and so they’re the type of videos that you can easily steal and put on other types of formats, like gifs (that is how you say it, gifs); and you can do gifs and stuff like that, so people steal my stuff all the time. So I’ve had some success in trying to get compensation from people who steal my stuff, and discussing that experience here will probably be the value that I can bring to the table.
A couple years ago, I had something that happened to me: Facebook, of course if you make stuff, you know they steal content all the time through third parties. So I created a video called Facebook free booting, and basically it was a shot over the bow of Facebook to try to figure out how to solve the content crisis on Facebook. So that’s probably why I’m on the stage right now, and that’s what I can add to this discussion for now.
Geller: I brought a script. So yeah, I’m Jared, I co-founded HitRecord with Joe Gordon-Levitt. Like any other creative production company, we make art with all kinds of images, we make books and there we go. We’re a creative community of 600,000 artists of all kinds from around the world, and we make all sorts of art together. Books and short films and TV commercials and TV shows, and we won an Emmy in 2014 for our television show, HitRecord on TV. So yeah, our artists, there’s 600,000 of them, are writers and illustrators and musicians and animators, and everybody collaborates on art projects together. Uploading individual ingredients and the community builds on top of that. If and when we can monetize any of that content, we pay our artists. Since 2010 we’ve paid out $2.3 million to our community for their contributions.
So yeah, we’ve been doing this since 2010, and it’s been our experience that the more opportunities that you can give to more and more artists, the more interesting and diverse the resulting art can become. And we’ve seen this time and time again, the stories that we get to tell via the HitRecord platform, we’d never be able to generate in any kind of writer’s room in Hollywood. But HitRecord, of course, wouldn’t work without the Internet, and the Internet is often a tool used to promote oneself and one’s own self-interest. But it can be used in a positive and productive way. The point of HitRecord is to make things together, and the emphasis is on collaboration, and to collaborate on the Internet, where people work together and share ideas and share profits. Trust is really important.
So from the outset, you have to have a transparent and honest online working environment. And to do that, you have to have a transparent and honest set of rules, terms of service. So we spent a really long time thinking about how do we collaborate, share ideas, monetize content in a way that is legal? So for about a year, Joe Gordon-Levitt and I and our lawyers created a unique terms of service that would allow us to collaborate with artists in every territory and monetize the content and pay contributors fairly. The gist of it is, essentially when you sign up for our site, you agree to three things. You agree that everything that you upload is yours and unique to you; you grant the community the right to remix your idea, so you could upload a piece of writing, and when you sign up for our site you agree that somebody else can take your writing and rewrite it as long as they give attribution to you. Then the third thing that you agree to is if and when we make money using your content, that we share that money with you. Those are the three things.
With thousands of individual pieces of content uploaded every day, we need to make sure that no illegal copyrighted materials that were posted, and to make sure that everything is 100% original. For a long time, we didn’t have any organized way of handling things. Everything was sort of reported from the community on a case by case basis, by hand, and you can imagine that was pretty ineffective and frustrating. So we actually created a reporting system; and this just seems so obvious, in fact I don’t think you’re allowed to upload an app from the AppStore on iTunes without a reporting system. But it took us a really long time. So we created a reporting system for copyright and people can self-police in a much more organized and efficient way now that we’re 600,000 artists. It’s become crucial to help self-police so that no copyrighted materials are uploaded to the site. In fact, when we updated this feature on our site, our community was so excited, it was one of the most popular features, this copyright flagging system.
So I just thought that was hilarious, but also indicative of the spirit of our community. Just briefly, I mentioned that we pay people on our site, and how we do this is we make profit proposals. This is software that we’ve created where every individual piece of content that goes into a production, we list it out, sometimes these are just 15, but they’re hundreds and hundreds long. We post a proposal, and then the community decides if that’s fair, we have discussion, and we make it final. And then we pay the contributors. So that’s just briefly how we pay.
Creating art is inherently social, and in the 21st century, there are a lot of possibilities and ways in which people can express themselves and distribute their ideas. But most creators here might have a lot of questions and concerns about the limitations of what we can create due to copyright. But we shouldn’t look at it as a limitation, because getting to collaborate with artists from around the world is a relatively new idea, and it’s a really great opportunity for us all to think about (or rethink about) what’s fair when it comes to creation of art of all kinds.
Miron: I also have a script. So I’m Gev Miron, I’m a partner and creative director at MVH Creative Works. We’re a Los Angeles-based creative agency and production company. Our work is mostly with bigger brands and companies like Facebook and YouTube, where we work directly with them rather than with individual users or collaborators. But it seems to be the case for all of us here, what we have in common, is that we really believe that everything, everything that you guys can think about started with a great idea. You know, Keith you mentioned that copyright doesn’t really protect the idea, but ten people could potentially have a similar idea, but they’ll execute it differently. That’s what we’re interested in, for everything that we do at MVH, we always try to start with a great idea. If we don’t have a great idea, then we don’t go for it.
I think that it goes for all of us that we … when we think about what we really want to do or what we’re passionate about, and when we think about our ideas, we want to make sure that we’re in some way protected, because even if the idea is not protected, definitely our work should be. This comes into play when you work with big companies or when you work with individual collaborators and it’s always the same thing. It’s always the same discussion when it comes to contracts and agreements. I think we all kind of hit the same issue every time and it’s, you know, split profits and all kinds of things.
So we really believe that we need to take our ideas and be responsible and nurture them, because that’s what we do. We take something and we try to grow it in a very organic way, something that we think could really bring value to the table and not just do something that is, you know, sort of like everything else out there. We’re trying to be original, and I think we’re all trying to do the same thing, create something that we’re all excited about. So really I think in the sense of keeping our ideas and keeping them to the standard that we think is something that we want to share with the world and people.
We really want to make sure that our ideas and our work is protected as much as we can, and that all of you guys and everyone here in the Internet community and YouTube, we can all create because really being able to create and knowing that we’re protected is what’s going to keep us doing more and more things. I think that this is, for me, this is why I’m here today, because I want to make sure that we’re all part of the community, whether we’re creating commercials for Facebook and YouTube and other big brands or making our own videos at home, we want to have the same rights. And we want to make sure that we’re all protected the same way and that no big companies can just come and take our stuff just because we did something with our iPhone and they think it’s okay, or if we did a million dollar production and they still want to take something, that’s all part of the same thing. So that’s what we believe in at MVH and I hope we can all learn something today and hopefully work together toward a better community, online and offline.
Kupferschmid: All right, well thank you very much. So you’ve heard from our creative panel, our creators. So you get a sense of how they look at the issues from both the creator’s standpoint and the user’s standpoint. And it’s obviously a difficult situation, but we’re here, this is a workshop, so we’re here to try to answer questions, educate the audience, we’re livestreaming this benefit anyone who’s watching as well. And we do have a team of attorneys here to help us answer questions. Hey, when was the last time we got a round of applause for attorneys? That’s gotta be a first. We should just stop there. Everything else would just, yeah. So …
Kupferschmid: So I’m going to have them introduce themselves and I’ve got a few questions I’m gonna start out with that we got ahead of time on the Internet, and then we’re going to have people walk the audience for questions. I already see somebody back there asking. But I’ll have Vivian, why don’t you start? Then pass the mic down and we’ll …
Lee: Sounds good, my name’s Vivian Lee, I’m from 21st Century FOX, I work as a senior litigation counsel for pretty much all of 21st Century FOX’s entities including for example 20th Century FOX Film Corp, FOX Broadcasting Company, FOX Sports, and even FOX television stations. So we work with the creators, the business units, what they create and try to make sure that we can protect what they are doing and then I also work with outside lawyers outside the company when it’s necessary for us to either offensively sue others who are infringing our works in certain situations, or defend us in situations where other people are saying we infringed their works, for example. So we’re on both sides of it. But we definitely care about the creator’s plight.
Graves: Hi, I’m Franklin Graves, I’m from Nashville, Tennessee. I work for a classical music company called Naxos Music Group. It’s based out of Hong Kong. We have about 16 offices around the globe, and so I work out of our U.S. operations. I’m corporate counsel, so I oversee any and every legal aspect of the company, and I’m an Internet creator as well. I’m a member of the Internet Creator’s Guild. I have a YouTube channel, it’s very small, it’s very niche for law students, law school people, so you have no reason to go subscribe to me. So yeah, unless you want to go to law school. That’s a whole other discussion. But yeah, I’m a self-published author, so I’m all about Internet creations and the power that it provides and the tools that are sort of readily accessible on our electronic devices from the iPhone to your laptop.
Hocking: My name is Ann Hiaring Hocking and I’m a partner in a small firm outside of San Francisco called Donahue Fitzgerald. I’ve practiced copyright law for a few decades. I represent both plaintiffs and defendants. Some of the … I mean there isn’t a typical client, but I will say that on the content protection side, I represent clients like Brother David Steindel Rast and his writings, A Course in Miracles, foundation for inner peace, I tend to have sort of more spiritual writers, all kinds of writers, who get ripped off. On the defense side, well also on the plaintiff side, graphic artists who find their content used by some project inside Microsoft and it’s like “hold on, I didn’t intend my graphic to be used by Microsoft.” “If they are going to use it, I really think I oughta get paid here.”
So it’s not just the big bad copyright owners out there, it’s also a wide range of content creators whom the copyright law really benefits, so I’ll just leave it at that.
Kupferschmid: Okay, great. So we’re going to start with the questions. I’ve got a couple here that I’m gonna start off with that we got online and then we’ll open it up for the audience here. So the first question is, and either our creators or our team of attorneys, can jump in here. The first one I’m going to read off here is: “I’m not as concerned about DMCA takedown notices as I am about content ID system on YouTube. Is it fair to use automated software to block people from trying to upload a whole movie or video worldwide, as opposed to those who are making fair use of a clip? Is content ID really doing more harm than good? If content ID steps in and prevents any DMCA interaction, is it even a legal extension of the DMCA?” So, ultimately, this question gets at that distinction I talked about earlier between content ID and the DMCA, and is content ID working? So I think Franklin may be leading us off here with this one.
Graves: Yes. You did a great job earlier laying the groundwork for that, but this is a quick slide, and YouTube, their “help” section is a pretty incredible resource for a lot of this. But this information is essentially the same that you’d find there. So don’t negate the power of the YouTube “help” section and the YouTube “creator academy” resources. So to get to the question, again Content ID is not the same as the DMCA. The most simplistic explanation is that the DMCA has a specific set of criteria that a content owner must follow; otherwise there is no proper notice of the alleged infringement. So this slide gives an overview of that. This is YouTube’s Content ID system. On Facebook, I know a lot of Internet creators are now on more than just one platform, such as Facebook, Soundcloud, Vimeo, Daily Motion, all the other ones. And those are overseen by another company that has their own automated content recognition system. I’ve chosen not to work with that company.
Sandlin: Their approach is: “I will go through and I will find all the people that are infringing on your stuff, and oh by the way, accept our terms and conditions and upload this content.” That’s why I’ve personally chosen not to do it.
Graves: Yeah, so and that’s your choice and exactly the right thing to do, but to just be educated enough to know that that is one other content ID type, automated content recognition system. So getting to the question about content ID and the DMCA, I think it’s important that everyone here is an Internet creator of some kind, I would think. So we should all have a mutual respect, and whether it’s the freebooting that’s happening, whatever, we should all have a mutual respect and understanding of the rights. If you’re taking somebody else’s clip and commenting on it, I mean we’re seeing what’s happening with H3H3 and the whole fight that’s going on there, and that’s what a lot of YouTubers now do is take somebody else’s video or a big company’s video and you critique it. You add commentary to it. So that in particular is going to be interesting to watch what happens there. But just don’t forget that we have to have that mutual respect (for fellow creators and their works).
Hocking: Or a scientific or a political analysis point of view. That is commentary and should be protected. But it’s not, on the other end of the spectrum, you can’t just throw up a bunch of content and say “this is lousy, oh do you believe this person’s point of view?” Or “boy, that sure wouldn’t fly in my hometown,” or whatever. I mean that doesn’t rise to the level of criticism or comment.
Miron: I’m just going to add something. Very recently we had the, I guess, very good fortune … one of our actresses we worked with who is Gal Gadot, now Wonder Woman, she became suddenly a huge star and we did a campaign with her about three years ago. And suddenly our commercial that we did with her started popping up in so many different places and blogs and not necessarily the commercial itself, but also some screenshots and people kind of shared it and it was a great thing for us, because we’re like “well, free publicity.” I had a discussion with the brand and they were less excited about it because their contract with her was for three years and those three years had expired not too long ago, and they couldn’t have it online and they were worried about having it online. And I don’t know the laws about that, but I told them “well you know, free publicity, I don’t think you should say anything about it, I don’t think you should file for a copyright infringement.” But they were concerned about it and I think justifiably they were kind of worried about it. I’m interested to know what’s your take on that.
Lee: So that has to do with a different aspect actually, other than copyright law, which is the right of publicity and I’m sure that when she signed a contract in order to participate in that commercial, she gave the brand a certain period of time to use her likeness, her image in that commercial for a commercial purpose to help the brand. So in that kind of a situation, you know, it’s a very different thing in some sense from copyright because copyright protects any creative work, original work that’s fixed in a tangible medium, but that’s different from an actress, for example, protecting her name, likeness, image. So we can’t really give, you know, the brand legal advice at this point, but you know, it’s a completely different ground.
Graves: So adding to your point, YouTube specifically has a separate notice area. It’s called, I think it’s something like “submit other legal claim of some kind,” and that’s where you can actually cite to a specific U.S. statute or local statute, and claim something like right of publicity. So there is that alternative avenue; but going back to the fair use thing, I know a lot of young creators and even established creators in the room and it’s hard because you sometimes see like, off the top of my head, I’m trying to think, like the Honest Trailers kind of people and you see the Bad Lip Reading with the NFL, where it was like “oh my gosh what’s the NFL gonna do about the Bad Lip Reading ’cause they were very protective of their content; but it’s hard when you’re starting out or you’re not as successful viewcount wise as those types of creators, to look at them and say “hey, they’re doing this, why can’t I do it?” I don’t have any connection with those brands, or those channels, but you never know if they have a license agreement. Is it a brand partnership to kind of promote a new movie coming out? They do an Honest Trailer for it. It’s just, you got to think that you can’t just look at what somebody else is doing.
Kupferschmid: Legal clinics in all the different states listed with their website, their phone numbers, everything that you would need is there. So I think the other thing we learned from that question is obviously we’re here to talk about copyright, but there’s other aspects, there’s right of publicity, there’s trademark, there’s other issues that are going to come up in the context of your creation. And then the other thing we learned is that sometimes it’s not just about the legal issues. You may be legally correct and the other side may be legally correct, but the practical implications indicate that maybe this is good for things like free publicity or something that is separate from any legal arguments that you or the other person might have.
Graves: So yeah, the question revolved around music copyrights, what are some basic things to know? Is that kind of a good summary? Like Ariana Grande specifically?
Sandlin: Yeah, well I was thinking more along the lines of like song covers specifically, because that’s such a big market on YouTube, when does that get into an area where you can get taken down, ’cause they say it’s all over the place.
Graves: Yeah, totally, so I don’t know, I guess I’ll go ahead and just get into it. So with music copyright, it’s important to know that there’s actually two copyrights that you need to be aware of. You have the actual sound recording and you have the publishing. So the sound recording, using our friend Ariana Grande as an example, her version of Break Free for instance, is her version. So it’s the record label’s version, more than likely, based on her agreement. So that is a specific recording that you have to have a license to use. But then you also have to have a license for the publishing side of it. The publishing is the lyrics, the medley, that kind of aspect to it. So you have two different things there. So when you go and create a cover version, you’re creating your own copyright in the sound recording that you’re making of you singing. Kind of like Boise Avenue, Kurt Hugo Snyder, those types of people, they own the copyright to their particular sound recording. But what they don’t maintain is a right to the underlying publishing.
So that’s where publishing companies come into play, and a popular company back before the YouTube age would have been Harry Fox Licensing, because they provide a lot of licensing for distribution of physical products if you want to make CD’s and sell them at a concert, if you’re a musician and you’re on YouTube if you want to have physical products or if you want to put your songs on iTunes … or on the iTunes, that sounds so old. On iTunes or Spotify or if you have any overseas people, Deezer, other DSP’s like that, you have to have a license to do that. So that’s where those kind of come in play.
So this one in particular I searched for, It’s Beginning to Look a Lot Like Christmas. You’ll see from the search results YouTube spits out, there’s a Michael Buble version. So that kind of gets to your question of that’s that particular artist. But then you also have a Bing Crosby version or an Elvis Presley version of Blue Christmas. So if you go here, YouTube has already worked with a lot of the copyright owners, the content owners in the music industry, and it will tell you whether you’re pre-cleared to use something. So it’ll tell you, for instance, on this Michael Buble It’s Beginning to Look a Lot Like Christmas, it says you can use this song. Again, they’re talking about the sound recording, that particular Michael Buble version, you can use it, it’ll be viewable worldwide if you put it in your video. But you won’t be able to monetize it. They will be able to capture all the monetization for it.
Then underneath that, if you perform a cover, it’ll be viewable worldwide, and this is important especially as a creator if you’re looking at demographics that YouTube provides you, your analytics, you’ll want to make sure like, if you have a huge following in Germany, you want to make sure that that little search that you do for your cover song is not going to make your German fans get that dreaded box that says “Not Available in Your Country or Territory.” So this is a great way to help it, but again, I want to emphasize this is only for YouTube. It does not give you a license, it does not do anything like that for anywhere else but YouTube and it can change at any moment.
Hocking: Yeah, one comment I’d like to make is that, “just because everybody else does it, I oughta be able to do it, it’s got to be okay.” That really has never worked terribly well, and although it’s fooled a lot of people, and the biggest crash I think was the Napster litigation. If you’re familiar with what that was, this technology that created it was file sharing technology for music. You know, you just can’t do that, you just can’t copy music and put it in an archive somewhere and then make it open for everybody to copy it. It’s just flatout copyright infringement. That occurred for a while, but then it stopped. So “just because everybody does it, it’s got to be okay” is a real dangerous approach. Then one of the things that the three of us really wanted to share, and Franklin did a great job on the YouTube, there are so many places on the web where you can access content and learn what you can freely use.
So if that’s helpful to you, and particularly if you’re creating a product that you think may be salable like the Smarter Everyday, then by all means, you know, go on Wikimedia Commons, but then go on the reuse section of Wikimedia Commons and find out what you need to do. It’s typically something easy like attribute the work, in other words tell people where you got it, who actually wrote it or whatever the case may be or took the photograph, and then there can be free reuse license provisions.
Kupferschmid: Okay. You have something else you wanted to say?
Graves: Yeah, so I know a lot of YouTubers utilize content. So, for instance, Video Game Historians, anybody know that channel? I really enjoy his videos. He’s a phenomenal YouTuber I think in terms of generating monetization in other avenues beside just YouTube. He recently released a Blu Ray set, physical product of all of his episodes, and it’s really cool. He basically gives a detailed history of all aspects of video games, and they’re really well produced. But what I, like just thinking of that off the top of my head, like if you think of Guardians of the Galaxy volume 2 for instance, they use the Pac Man, spoiler alert, they use Pac Man at one point. You got to get licenses for this stuff. I don’t mean to call out a creator, it’s just that’s a good example, I think. I would hope that there are licenses that are cleared or you’ve worked with an attorney to determine if it’s fair use or not. Those are the kind of the things you’ve got to be thinking about. You can’t just go to Google Image Search and take whatever product image or whatever image you find on there. So that’s why I put together this resource of some very free stock assets that you can search by Creative Commons licensing or just other open public domain stuff that may be government work like NASA and that kind of thing.
Sandlin: So that’s kind of on the defensive side. On the offensive side, if you’re a creator, we have people who want to use my videos a lot. So my wife and I are like “hey, we want that to go into the college fund,” so we don’t want people to just to steal it, we need to have a plan in place. So what we’ve created is a smartereveryday.com/. It’s like video license or something like that. So when we get a request, we have a “one off” video license, they pay money on the website, and then we give them a piece of paper, it’s a PDF, it says “hey, you now have a license for playing this thing five times in three months,” and people can use it in their training sessions and stuff like that. So if you create videos, it’s not enough just to say “hey, you stole my stuff, let me go get a lawyer now.” Have an offensive plan to make money with your content. I found it to be very effective. So I think we charge $75 for somebody to use the Smarter Everyday video in a training session. But they have to actually buy the license.
Geller: I just wanted to say one thing very briefly and I’m gonna really try to not get myself in trouble here. But a lot of copyright stuff, depending on whether not you want to pursue infringement or somebody is taking your stuff and using it without your permission, a lot of it has to do with how do you feel about, like it’s individuals, how you feel. There are certain times when we’ll have videos that clearly, somebody took our video and put it on YouTube and, you know, whether it might have been seen by a couple thousand people. But we’re kind of happy that it’s out there. And perhaps there’s a video that we hadn’t seen in a while, and there are certain cases and, I don’t want to get myself in trouble here, but there are times, depending on how you feel about a specific kind of art or a piece of art that you’ve made, it’ll pop up in places and there are times when we feel that that’s okay. I just wanted to put that out there. Don’t hate me for saying that.
Kupferschmid: Okay, so lightning round. So we get to more questions. The gentleman standing up in the black, I think he’s been waiting a while to ask a question today.
Audience Question 1: Hello, I’m a producer of television and film, but I’m also a marketing agency and one individual came to us to represent him. He was a celebrity, but not a great big celebrity. In the years that we represented him, he became a huge celebrity, and we want to produce a film, the true story of this individual, him coming to be and what we did to help make him famous. He has new representation, and they wanted me to sign paperwork saying I can’t talk about anything that I had in relationship with this individual. The individual is cool with what I want to do, but he’s got representation that’s saying no. Can I do my film, because right now I got a major studio in Burbank that wants to do this film with me, and it’s a big deal. So you being with 20th Century FOX, maybe you can help me with that. This individual’s cool with it, but he’s got representation that’s saying no, they want me to sign something, I’m not going to sign something, this is my story, this is my story. So do I have copyright protection?
Lee: So if I understand your question, okay so I can’t give you legal advice, right, because I represent 21st Century FOX and I can’t give people outside legal advice. That’s just kind of what I’m bound to by my agreements. But just from a general sense, I don’t think it’s a copyright issue. It really depends on your agreement with this person and how you came together and what you decided to do. So that’s not necessarily …. unless there’s something that’s actually fixed that you’ve created already that belongs to both of you, that’s not a copyright issue. It has to do with a contract issue. Whether that be a written contract or an implied contract, that’s expected or even like an oral contract, right? So, I think the best thing for you to do… are you in Los Angeles?
Audience Question 1: Las Vegas, but I can come to LA.
Lee: Well, you know, just as Franklin mentioned, there’s a lot of volunteer lawyers for the arts organizations. I know one in Los Angeles. There’s a California Lawyers for the Arts organization that can help people. But there’s also, you know, I think the thing to keep in mind is that a lot of creators who are not making lots of money, they think lawyers are out of reach, right? But there’s a lot of legal services, lawyers out there these days that are willing to help creators, and even the legal models are changing, right? So you could talk to your creator friends, see if they have a lawyer, don’t always think that lawyers are just going to cost you hundreds and hundreds of dollars an hour. And look for someone who can actually provide you with good legal counsel instead of just saying “I can’t afford it, I really can’t think about it, so therefore I’m just not going to think about it.” Which would get you in more trouble.
Kupferschmid: Okay, so let’s take another question here. The gentleman here with the short sleeve shirt.
Audience Question 2: Hi, thanks. So when it comes to educational fair use, my current understanding is it’s a little bit more generous, and I kind of wanted to get a little bit more detail on that, specifically when it comes to adding like, so if a kid takes music off of YouTube to add to their completely original work, and then they want to show it in, say, a film festival that multiple schools are participating in, is that flying or, like, what’s more detail with the fair use when it comes to educational purposes. They’re not trying to monetize it.
Kupferschmid: I can jump in a little bit here if you don’t mind. It’s like a moderator’s privilege. So yeah, I mean if he’s using it for educational purposes, and if you consider fair use is going to come out a little bit different. I mean I don’t want to say just because it’s educational, then it’s automatically a fair use, because there may be a commercial, maybe it’s education but you’re selling it. Then the other thing is you’ve got to look at is what you are using, what you are taking. Are you taking another educational piece, are you taking something from Destin (for example) who is in education. And so it might have sort of his own right to that market. So, once again, it’s not a black and white answer. I think we have two minutes left, so we’ll take one more question. I think the lady in the red hat. Right, red hat?
Audience Question 3: Yeah.
Kupferschmid: That’ll be our last question. I apologize, I know we have lots of questions and we could take them maybe afterwards.
Audience Question 3: Hi, I have a question regarding recreating. If you were to recreate a scene from an animated movie, but create it like live action on a green screen and completely recreate it using the same script, what is the legality of that and is it possible to monetize it or is it just like “no don’t try and do anything with that”?
Lee: Well it depends, right? From the lawyers, you know, and I will caution that I’m not going to speak on behalf of a company, because I’m just here, and I’m not going to opine on, ’cause I don’t have all the facts of the situation. But what you need to keep in mind is in your fact pattern. You were saying that you were going to take the script, so that script is a copyrighted work, right? So even if you were to create, for example, a derivative work of that script, that derivative work right is actually one of the rights within section 106 of the copyright act, that belongs to the copyright holder. So it depends.
Kupferschmid: Yeah, but these issues get litigated all the time. As a matter of a fact, there was a big famous case involving Abbot and Costello that just decided a couple weeks ago by the courts, and that’s obviously “Who’s on First” which has been around for a long time. So there are constantly issues being litigated and, unfortunately, there is no black and white answer. So we have hit our limit, and I want to thank everyone for their time. I know we didn’t get to your questions. Send them to us. We will do our best to answer them. Not only that, we’ll try to answer them in very public way so that I know there’s a lot of people who have similar questions, so they can see the answers. So send us your questions through Twitter, email. I want to thank my panel and for you all for being here. Thank you.
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