Are you a creative type or entrepreneur who wants to use copyrighted content created by somebody else in your creative expression? I may be able to help answer some of your questions. In the following, I assume that you are trying to “sample” from copyrighted content that belongs under the umbrella of a copyright. I will expand on the different types of intellectual property later.
I am not a lawyer, but I have done some research on the subject to help you avoid trouble (i.e. infringing on somebody else’s intellectual property rights).
For simplicity’s sake, I will focus on the concepts of copyright, fair use, and how to contact a copyright owner to ask permission to use their materials.
If you want to use copyrighted materials for profit, you will need to either use copyrighted content whose copyright has expired (e.g. a statue made by an artist who’s been dead for 100 years) or you will have to obtain permission from the creator and sometimes the owner as well.
1. Define Terms
Google’s online dictionary defines a copyright as follows:
“The exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.”
It is important to understand that much like patent and trademark law, the specific definition of a copyright can vary depending on where the copyright is held.
One should also be familiar with the concept of “Fair Use” – another term with a dynamic definition.
Google’s online dictionary defines fair use as follows:
“(in US copyright law) the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.”
2. What does that mean to me?
A copyright does not protect ideas / facts, but it is intended to protect the method of expressing an idea. This means that you and your friend can express excitement over the newly elected POTUS through YouTube videos, but you cannot use their work to express your feelings about the president without their permission.
Unfortunately, the concept of fair use varies widely by country, but in general one can consider the following fair use.
- Buildings (if public / visible from “public”)
- Public Works of Art
- News Reports (but identify the author)
- Reviews / Critiques
- Ads for Sale
- Incidental Background (Is the work “essential to photograph?”)
So what does this mean to you, dear writer / painter / musician / map maker / jeweler?
If you want to sample that song, or include that painting in your photograph at the very least give the original artist credit and if you are able, contact the copyright owner(s) and obtain permission before doing anything.
3. How to contact copyright owners:
I suggest that you begin your quest to obtain permission for use with the actual copyright. If you cannot find that information easily, try searching for Copyright Licensing Organizations.
Check the copyright
- Look for the © and make note of the information around it
- Who is the publisher?
- Who is the author?
- When was the work copyrighted?
Search for relevant Licensing Organizations
- WIPO (World Intellecutal Property Organization)
- Wiki for Global Copyright Licensing Organizations
Works in Print
- Copyright Clearance Center / WIPO
- The Authors Registry
- Most online sources provide contact information,
- Try contacting the site’s owner or admin as a first step
- Copyright Clearance Center
Music – Mechanical rights
- Harry Fox Agency
Music – Performance Rights / Dramatic Works
Pictoral, Graphic, & Sculptural Work
- There are hundreds of organizations for this, the most recognizable would be:
- Motion Pictures / Audio-Visual Works
- Motion Picture Licensing Corporation
- Getty Images
(See: Columbia Copyright Advisory Office (Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.))
In general, copyright lawsuits are filed against the users of copyrighted material so this would apply to the artist as well as the business who wants to use the copyrighted work for profit.
The WIPO suggests that creators of copyrighted content include an indemnity clause on licensed material whose purpose is sale, publicicity, or manufacture in order to avoid any liabilities that may arise from the licensed use of their content.
One should also ask permission before:
- printing, scanning
- making a collage
- altering (by adding “artistic elements”, etc.)
- publicly displaying photos of work
in order to avoid the possibility of a lawsuit.
If you have trouble with this, be aware that you may need to compensate the copyright owner for economic loss because only a copyright owner can freely reproduce a work freely. This may apply to you even if you are not using their intellectual property for commercial purposes.
- Trademarks are slightly different. One can photograph a trademark so long as the use of said trademark is not confusing (meaning the relevant public would not think that your work was acutally from the trademark owner).
If you have any questions, please contact me. I am not an attorney, but I know one or two really great law firms.
Good luck and happy creating!
If you’d like to continue this conversation – leave a comment.
If you have suggestions for future blog posts – let me know.
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