Copyright made simple

I visit alot of message boards, and I’m always surprised at how often I see: “Hey, do I need permision to use…”. The answer is always the same…yes Billy, you do need permission to show the poster for El Mariachi in the background of your movie. And of course, this anonymous person who I’ve called Billy for no apparenet reason then asks, “But it isn’t for profit do I still need permission?”

For some reason, copyright is seen as a bit mysterious to most poeple (especially little Billy). I guess it is understandable, because copyright is essentially owning something, that isn’t really a physical thing…but it isn’t just an idea either. For example, you can’t copyright the idea of “a movie about birds attacking people”. But you could copyright the script of a movie about birds attacking people. Contrary to popular belief, copyrighting isn’t really preventing people from stealing you ideas…its about preventing theft of your hard work.

How copyright works
Note: Unless otherwise specified I’m talking about US laws and regulations. As soon as you take an idea and turn it into a tangible form, its copyrighted. As soon as a painter makes the last stroke of his brush (and you may even argue that on the first stroke of his brush) his painting is copyrighted. As soon as I write a post on this blog, its copyrighted.

The simpliest way I think of to look at copyright is that copyright is literally the right to copy something unique. If you have something with a new and unique aspect to it, then you need permission to copy or adapt it in any way.

Registration
In some cases, you’ll want to register a copyright with the government. Understand this key concept…you aren’t “copyrighting” when you register. The work you’ve made is copyrighted the instant it is created and put onto a tangible medium. Instead what you are doing is telling the government, “I made this, on this date”. The US government does not so much as read the title of your registration to determine if its like something else or not.

So why register? Well, registration provides you with one invaluable commodity…a time stamp. By registering your idea, you have proof that you created the idea on this date exact date. If someone tries to sue you, and they have a copyright on the exact same work…whoever has the earliest registration will usually prevail.

Using copyrighted materials - Even if you aren’t making money
Back to our original question: Do you need permission to use someone elses work, even if your using it without the intention of making a profit? Well, its not a simple yes or no answer. In general, there are two ways that you can use something for free:

• Public Domain
• Fair Use

Public Domain
In general, things over 100 years old will be public domain. That’s a big over simplification, but its usually true. Copyright laws, especially through the 70s under went some drastic changes, so something that was created in one year may be public domain now, but something created the very next year may not be public domain for another 30 years.

And don’t forget, modern adaptions of public domain material are copyrighted as well. For example, take a symphony by Bach. You could hire an orchestra and play that symphony and put it on a CD or in a movie without any issues. However, you could not take a recording of that same symphony made by the Chicago Symphony Orchestra and turn it into the soundtrack of your movie. The source material may be public domain, but their are unique aspects to the performance, and as I said earlier if something has a unique aspect to it, then you need permission to copy it.

Fair Use
Fair use is the magic word that many filmmakers think is the holy grail. Well, its not…and for many of you fair use will be pretty useless. Fair use is essentially a provision in the law that allows people to use copyrighted materials without permission, and without paying provided the use falls into certain catagories:

• Education - If you teach a film class, you don’t need permission from the studio to show a film in class. For filmmakers this type of fair use is good for documentaries. Want to make a documentary about the history of an old closed down Coke bottling plant? You can probably get away with using Cokes labels without permission (see disclaimer below)
• Parody - If you want to make a parody of something, you don’t need permission for elements involved directly in parody. After all, would parodies even get made if you had to ask the person who made the work you want to parody? Be careful with parody though, because it doesn’t always cover you 100%. For example, you have the right to make a funny parody song of Brittney Spears’ latest hit…but you don’t have the right to sample the drum beat (unless it is justifiable that you can “make fun” of a drum beat simply by repeating it).
• Critique - As some of you may know, I’m also part owner of a horror review website Killer Film. Its fair use for us to use a small clip, screen shot, or part of the movies promotional materials in our articles in order to critique a film. In general, here we are talking about a small portion that is representative of a work, but contains very little of the work itself. I can’t show half of the movie on my website, and then say I’m using it as fair use for critical purposes. This is not, however, the same as the whole Kevin Smith method of making references to movies as part of your dialogue. Sorry…but you have to get permission for that.

In general, if you are making a narrative fiction film, fair use is fairly useless. Fair use is mostly for documentaries, and information sources like websites.

But what if I’m not making any money?
It really doesn’t matter at all if you are making money. When you use a copyrighted work, you are devaluing the work. Let say for example, an underground band has a new CD out. You use one of their songs in your movie without permission. Then suddenly the song is a hit (by coincidence only….your movie didn’t make it a hit).

Now Warner Bros wants to use to be the first to use this unique and cool song in their next movie…and they are going to pay them $50,000 for the right to do so. But then suddenly, someone at Warner sees your movie and goes back to the band and says “hey wait a second….someone else is already using this in their movie…its not so cool and unique anymore. And this looks like a low budget indie movie. I bet you only charged them $3000 to use your song. We won’t give you $50,000…but since we’re nice we’ll still give you $25,000.”

You just cost the band $25,000. Guess how much they can sue you for? More than $25,000…because whose to say that you haven’t hurt future revenues that they don’t even know about. Who knows how much damage you’ve done to the value of their product? No one does…but I’m sure their lawyer can make up a nice scary number.

Work for hire
Finally, the most important part of copyright law to understand is work for hire. When you are paying someone to produce any copyrighted material, you own any material which they create. This includes hiringing writers, composers, cinematographers…anyone. If you ask anyone to make any material, and pay them to do so, you are the owner of all rights to that material.

This is especially important when it comes to music. Licensing popular bands to add to a sound track can run you into the hundreds of thousands of dollars. Its far cheaper, and often more effective to hire a composer for around five to ten thousand dollars to score the entire film. Of course, if you have the skill you could compose the soundtrack yourself. There are many excellent software programs out there that make creating professional sounding scores much easier than they were just a few years ago.

If nothing else…
If you take nothing else from this article, just remember this: Know who owns everything you use, ask permission, and get written documents that prove you have the right to use everything.

Disclaimer
This article should not be construed as legal advice. I am not an attorney. Always consult a qualified intellectual property attorney before making any intellectual property related decision.