Copyright Law and Contracts: Part 1 and 2

[BJ_M]

http://www.creativecow.net/articles/bonniol_bob/copyright/index.html

Not Legal Advice -- always talk to a lawer

PART 1

Bob Bonniol
Monarch Designs, Seattle, Washington USA
©2003 Bob Bonniol and Creativecow.net. All rights reserved.


Article Focus:
Bob Bonniol discusses copyright law and contracts as technology brings new levels to common ideas of physical and intellectual property.
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Here is a common moment in the process of negotiating our contracts for projection designs. After coming to terms on all points financial and creative, it is time to hand over a contract for signing. The producers contented grin morphs to horror as he sees the thick sheaf of paper and feels its weight… “Why is the contract so big ?” he asks. It’s then that we begin our little lesson on intellectual property rights, and why they are VERY important to that producer and to us...
It is a tricky time for this topic. Definitions and practices up to now have been very subjective and negotiable. New breakthroughs in delivery technologies (mp3, DVD burners, etc.) have awakened the sleeping giant of the content providers. The first to be pushed into the flames has been the recording industry, as it struggles to incorporate the paradigm shift of electronic distribution into its business plan. Represented by the RIAA, the record labels have poured millions of lobbying dollars and significant legal maneuvers into maintaining control of their content, their intellectual property. Yet they have found themselves stymied by the persistent march of technology and a shift in common ethics and philosophy. Somehow many people who would never consider the physical theft of a CD from a record store now have no problem with downloading an MP3 of their favorite new song. As we will see, the very existence of intellectual property rights is being challenged at many levels.

As functioning artists in the ‘real’ world of entertainment business we have to know, understand, and apply these rules. As functional artists existing in a purely creative space, we have to look at the larger concept and its impact on creativity itself.

Over the course of two columns we’ll come to an understanding of the status quo and how to apply it to your process; we’ll also try to shed some light on an incredibly broad and hotly contested topic at a philosophical level.

Projection design can encompass as many formats as there are designers. Gobos, PANI projections, 35 mm slides, scenery machines, and digital projection are just a few of the main formats used individually and in combination with each other. As designers in this field it is incumbent on us to create imagery and media. Sometimes this media is entirely original and non-referential; other times it is quite topical and recognizable. The tricky line that must be walked is two fold. How does a designer protect from others infringing on the copyright of their new and original creations, and how do designers protect themselves from being prosecuted for inadvertently using materials in a design provided by the producer. Certainly we don’t want unscrupulous folks somehow acquiring our media and re-purposing it. Conversely the producer will want protection for their organization in the case that you, the designer, use materials that infringe copyright.

Copyright is ultimately defined by legislation under Title 17 of the US Code and refers to the author’s exclusive right to:

reproduce,
prepare derivative works,
distribute copies, and publicly perform and
display his/her works.
Think of the word “author” as referring to creators of all sorts such as writers, photographers, artists, film producers, composers, designers and programmers. Think of copyright as a bundle of rights granted to authors. These rights may be transferred or assigned in whole or in part in writing by the author. Copyright protection arises automatically when an “original” work of authorship is “fixed” in a tangible medium of expression. Registration with the Copyright Office is optional, but if you intend to defend your copyright it is necessary.
The government defines “original” to mean that a work is original to the author/creator and was not copied from preexisting work. They further define “fixed” to mean that a work is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Even copying a computer program into RAM can be found to be of sufficient duration for it to be “fixed”
Registering a copyright can protect a projection design from being taken out of context and also from being distributed without your knowledge, or used beyond any written agreements you may have with a Producer. Designers should not assume that since the projection design is in essence a piece of a larger artistic endeavor that it will be protected by the larger entity. A written agreement with the Producer prior to conceptualizing will keep clean any arguments later on about who owns what and exactly what you are being employed for. Royalties should be included in this agreement, in addition to the possibility of any future productions.

When creating projections, the designer also needs to be aware of where the building blocks are coming from. Is it copyrighted? Is it Royalty free? If not starting with an original photo, do you have the rights to use the piece you are starting with? These are referred to as derivative works.


Derivative Works

If you are designer and your design will be rooted in, or largely incorporate elements of, somebody else’s creation, then your design will be a Derivative Work.

There is a rich tradition of derivative works in the arts and culture of modern society. Literary farce, social satire, cultural and political commentary are all themes that have seen extensive use of derivative works. Andy Warhol’s much-vaunted Campbell’s Soup Can is a classic derivative work. A recent, hotly contested derivative work was Alice Randall’s novel, The Wind Done Gone. A recasting of the Gone With The Wind story from the perspective of the house slaves, it was initially successfully banned by court order. The Northern District Court in Atlanta had ruled with the Mitchell Trust that the book violated the copyrights of the original novel. The 11th US Circuit Court of Appeals overturned the banning, ruling that the book had satisfied the criteria of being a parody, and thus a legitimate derivative work.

Derivative works are the door in the otherwise secure ‘wall’ of copyright protection. Contrary to common interpretation, the creation of copyright laws didn’t occur to ensure the enrichment of the creators (although this is a component). Instead, the framers of the constitution constructed copyright law to protect and encourage the original creator, while supporting innovation of original ideas through derivative works. Ultimately copyrights are designed to expire, benefiting the greater society by making works of historical significance part of the fabric of public domain.

What constitutes legitimate derivative works?
The law doesn’t leave this door in the wall of copyright swinging wide open however. The two simple words, Fair Use define the practices that are held to be legal under the 1976 revision of the copyright statutes. Although the words are simple the criteria is convoluted. Essentially the legal bullet points for qualifying as fair use go like this:

Is the work of commercial or educational nature? If commercial are rights secured?
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.
Dizzy yet? This stuff is so important to us though. Projection Designers in particular seem to utilize documentary and journalistic styles that avail themselves extensively of fair use.



Using ‘Stock’

It is commonplace to start with an idea, a photograph, a piece of footage, a font, or even a character (i.e. Superman) to build projection into a production. So where do the basic building blocks come from? Frequently, especially with digital projection, the Internet is a great place to start the process. As a designer you need to be aware of how you obtain pieces, where they come from, and whom they belong to. There are many sites located on the web that allow designers to preview artwork and they break down into two main categories: Royalty Free sites and stock collections.


Royalty Free Sites: Clip Art, Photography, Fonts
Usually these sites offer the designer a vast area of clip art, photography in smaller resolutions, font collections, and rudimentary animations. They normally have a small user fee, or yearly membership dues of around $100. These sites are used primarily by the corporate market for printed and PowerPoint presentations. However, membership offers lenient usage agreements. You won’t find “projection design” listed in the usage agreement, but advertisement and other projection-oriented things exist to cover our field.


Stock Footage Collections: Pay for Play.
Stock footage sites can be a godsend to the designer. Reaching out to find the image that is just right for a particular moment is a process that is now enabled by browsing web catalogues of stock materials. Many of the top sites have the absolute best talents in photography or illustration among their rosters of contributing artists. Most of the major stock imagery providers have varying policies for payment and use of their materials. It is common for materials that will receive greater or more commercial exposure to charge more for it. It is critical to make sure you are satisfying the policies for the art you have licensed to avoid issues cropping up later. In many cases you will be able to download a free image for ‘comping’ purposes (working up or presenting the idea). This shouldn’t be mistaken for permission to project it forty feet high onstage at Radio City Music Hall.

We are out of space… And a little out of breathe. We’ll be covering more specific contractual language in our next column, as well as doing a little more investigation of the outer fringes of ‘fair use’. Stay Tuned.


PART 2

Just when you thought the ramble was done, here we are again. Beyond the functional knowledge that we covered in the previous column, there is a roaring debate going on in artistic, intellectual, and legal circles about what defines the idea of intellectual property and copyright. There are a large contingent of artists and philosophers who demand the freedom of information, knowledge, and art; Freedom to be created, freedom to be displayed, freedom to be copied, derived, or adapted.
For several decades now, hip hop and rap artists have utilized sampling techniques to put many of the most popular hooks into their songs. Anchored with some classic piece of R & B or funk, sampling gave songs instant identity, sometimes ironic context or commentary, sometimes simple adornment. Rather than viewing it as a simple rip off, these artists are reshaping, re-utilizing, and re-casting these pieces in new ways. It would be ironic to see the artists from Death Row Records hangin with the founding fathers, but the fact of the matter is, Copyright law was first and foremost, designed to expire.

The whole concept of intellectual property is relatively contemporary. The first patent law was enacted in 1623. The precursor to modern copyright, The Statute of Anne, was conceived in England in 1710. These early attempts at defining intellectual property were fairly narrow, addressing only certain types of published information, primarily military or scientific. Broader interpretations have only come into existence within the last fifty years. The most recent interpretation from the US Supreme Court, Eldred vs. Ashcroft, upheld the “Sonny Bono Copyright Extension Act”. Under the act many copyrights held by major media corporations will now extend for 95 years, with individual copyrights extending for the life of the author/creator plus seventy years. The first US copyright law, enacted in 1790, gave creators sole rights to their work for 14 years, with the possibility to extend for an additional 14. Why, you say, would the founding fathers have limited this ownership ? Because they saw the value of innovation and creation based on derivation.

"To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

We touched on this briefly in part 1. There is no question that the framers of the copyright laws saw the value in innovation as well as creation. Ideas were seeds in their view, important in and of themselves, but meant ultimately to grow into greater and perhaps even unrecognizable things. With a potential period of 28 years to enjoy a monopoly on their work and it’s benefits, it was judged that authors/creators would have ample time to build on the work, profit from it, and disseminate it as they wished. Many constitutional scholars argue that the benefit to society is then extended by making the work available to the public domain, encouraging further development. In refusing to uphold Eldred v Ashcroft, the Supreme Court has apparently expressed disagreement with this, reasoning that control of the work supercedes this public good. It is intriguing and somewhat unsettling to survey the lobbying efforts on the part of companies like Disney, and organizations like the RIAA in supporting the Bono act. As conceived the act would have defined the period of copyright control as “forever minus one day” effectively ending the very concept of public domain.

How to interpret this realistically is a bit of a guessing game. To draw an example, at the moment we are designing multimedia and projection for a fabulous new piece by the Pat Graney Dance Company entitled The Vivian Girls. The piece is based on the work of Henry Darger, a highly eccentric artist who remained completely undiscovered in his lifetime. Darger’s work comprised literally hundreds of watercolor paintings, with a companion 15,000 page novel describing an imagined land with heroes known as The Vivian Girls. Darger’s primary method was to trace figures and faces from the catalogues and advertising of his era (the 30’s and 40’s). We in turn are using the Darger pieces for projected backgrounds as well as a launching pad for exploring palette and composition. Though we are working with the full cooperation and permission of the Darger estate, with the enactment of the Bono act, it is theoretically possible that the ‘owners’ of the trademarked or copyrighted images that Darger used could seek damages or restitution. Possible, although not probable. There is a great deal of circumstance and reasoning that plants our project square in the realm of fair use. However, a company that had the motivation and the funding for legal action could effectively bring our effort to a halt, purely because they can outspend the dance company in the legal process of discovering who is right. Designed largely to ensure the stability of big corporate revenue streams, the Sonny Bono act has vastly shrunk the available pool of public domain and what was about to become public domain. But as we can see, there is a lot of contention and struggle in our culture with the very validity of the idea.

Which brings us to our next and final topic: how does a designer working in the industry protect themselves from such litigation, and how can they assure producers the same peace of mind ? Our projection design contracts contain language which stipulates that any materials that we bring to the design are either used with appropriate permissions and payments, or are entirely original creations. We also have language that stipulates that any materials provided by the producers, or any of their assignees, enjoys the same legal status, and that we as designers are not liable if this is not the case. The specific wording should be looked at on a project by project basis, and certainly the opinion of knowledgeable attorneys or agents can be a great deal of help. Failing that, there are some fantastic written resources out there for tackling these contractual issues. We highly recommend the Graphic Artists Guild’s Handbook of Pricing and Ethical Guidelines. A trove of great information and specific boilerplate contract language can be found between the covers, and we derived a good deal of valuable intellectual property clauses from it. Another great book for design contract language information is James Moody’s The Business of Theatrical Design. We’ve found Caryn R. Leland’s Licensing Art & Design book to be another useful resource for dealing with licensing and copyright issues. It has sample agreements for licensing agreements, as well as shedding light on some of the industry standards for royalty payments and artist restitution.

When David Johnson asked that we tackle this topic, we knew that it would be complex. Little did we realize that some of the biggest legal copyright battles yet fought would occur while we covered it. After beginning the research and the writing, it was clear to us that this topic is wildly divergent in belief and practice. There is literally no end to the available information or opinions regarding it. So get out there and dig around a bit to get the MUCH bigger story. As artists we all need to be aware of what the rules are, how to operate within them, and what their context is. It is also incumbent on us as artists to challenge these rules and this thinking in order to keep our process vigorous and healthy.



Bob Bonniol is the Creative Director at Mode Studios in Seattle. Mode Studios concentrates on the live production market, providing content for projection at events such as concerts, award shows, broadway shows, etc. For more information about Bob, or Mode Studios, check out www.monarchdesigns.com

[DaBarrister]

A somewhat rambling but overall fair depiction of copyright juris prudence. The author does not go into any great detail, but it will give most readers a start in understanding a fwe basics of copyright.

I do agree that the length of copyright protection, while encouraging the production of orignal works, stifles innovation via derivation.

Like BJ_M said, it's not legal advice, and you should always speak to a lawyer.

[MikieV]

A section that caught my eye (emphasis is mine):

Designed largely to ensure the stability of big corporate revenue streams, the Sonny Bono act has vastly shrunk the available pool of public domain and what was about to become public domain. But as we can see, there is a lot of contention and struggle in our culture with the very validity of the idea.

Since, I believe the high-lighted section is what brought the most money to bear on getting the law enacted.

Of course, anyone following the threads on this forum could not help but agree with the last sentence of the quote. :P

Mike

[MikieV]

...edit...
Bob Bonniol[/i]
Monarch Designs, Seattle, Washington USA
©2003 Bob Bonniol and Creativecow.net. All rights reserved.
...edit...

I applaud attribution, but does this fall under "fair use"??

Sorry, couldn't help myself.

Mike