With the advancement of digital technology and ubiquity of digital media, just about anyone can produce and distribute content – and earn a profit doing so. From Netflix distributing original content via subscription service or VEVO streaming music videos through its digital music player to a teenager starting her own how-to channel on YouTube, the opportunities seem endless. However, these opportunities are not without pitfalls. This article provides an overview of some of the key legal issues to consider when producing digital content, including making the determination on ownership of the content, using someone's likeness and the use of music.
Do you own the copyright?
As counterintuitive as it may seem from your standpoint as producer of the content, copyright law dictates that creators or "authors" have exclusive rights to – in short, "own" – certain aspects of the content. In almost all cases (except for works created by employees within the scope of their employment), the creator or "author" is the person physically creating the tangible work – e.g., the photographer, the videographer, the scriptwriter – regardless of the fact that someone else entirely may have conceptualized and produced the content. The author's ownership arises automatically at the time the work is created and only a signed, written agreement can change that ownership. So, before you permit anyone to do any work on behalf of your project, you will want to ensure that each person has signed an agreement that states, at a minimum:
- that the person's contribution will be a "work for hire" under the U.S. Copyright Act, specially commissioned by you;
- to the extent the contribution is not deemed to be a "work for hire," the person irrevocably assigns all rights in that contribution to you; and
- that you will own the work and will have the right to exploit it without restriction.
While there is a "fair use" exception to the exclusive rights afforded a copyright owner, the exception itself only applies in certain limited circumstances, such as use of a copyrighted work for purposes of news reporting or teaching. As a result, it is never a good idea to rely on a fair use claim without seeking the advice of an attorney.
Do you have consent to use someone's likeness?
Consent is required from any person appearing in the content, which includes any person whose name, voice, likeness, or image is used in any recognizable manner, even if merely an imitation, which permits you to use the person's identity in the content. Pursuant to a patchwork of state-level laws (by statute and common law) generally known as right of publicity (ROP) laws, everyone – celebrities, reality stars, and the rest of us – is entitled to control the use of her own name and likeness for commercial or trade purposes, which generally includes any use related to marketing, advertising, or promoting goods, services or brands. These laws differ from state to state. Some states, like New York, by statute require written consent in all situations. California, on the other hand, is an example of a state that does not require written consent but allows ROP of celebrities to continue even after death, in which case their estate can grant permission.
Note also that, for any child appearing in your content (which generally includes anyone younger than 18 years old but can include, depending on the state, anyone younger than 19 or 21 years old), you'll need to obtain the consent from the child's legal guardian. Finally, as a general rule, you do not need permission to use a person's name or likeness for purposes of news reporting or commentary that does not have a commercial tie-in, although the use of a name and/or likeness for those purposes can give rise to other state law claims, including defamation or false light claims.
Have you cleared the music rights?
Any piece of pre-recorded music will require licenses from two different rightsholders: (1) the owner of the copyright in the underlying composition (usually the publisher or songwriter), and (2) the owner of the copyright in the recording (usually the record label pursuant to the terms of a recording contract). However, if you intend to create musical content by recording a "cover" of an existing song, you will only need licenses for the underlying composition. There are two types of licenses, at a minimum, that a producer may need depending on the type of content.
Public Performance Licenses. To play music publicly by means of a digital audio transmission (i.e., over the Internet), whether as part of audio-visual content or on its own, a producer must secure a public performance licenses from the owner of the copyright in the underlying composition and the copyright owner of the sound recording. Fortunately, when distributing via a well-established third-party digital platform whose business is distributing musical content (such as VEVO), it is likely that the platform will have secured a "blanket license" from one of the three performance rights organizations (PROs) which will cover your public performance of the underlying composition within the U.S. However, you should always check with the digital platform first and do not assume that the digital platform has a blanket license that covers your content. Distribution outside the U.S. may require additional licenses which may or may not have been obtained by the digital platform. Note that the contact information for the publisher and/or songwriter can usually be located in databases accessible on the websites of the various PROs.
Synchronization Rights. Furthermore, when combining music together with visual content, such as in a commercial or music video or recorded live performance, the following is required:
- a synchronization license, or a "synch" license, from the owner of the copyright in the underlying composition; and
- if you're using pre-recorded music, a master use license granting synchronization rights from the owner of the copyright in the sound recording (the master use license can provide both the public performance rights discussed above and the synchronization rights).
Note that there are no set fees for synchronization rights; the fees are determined by the rightsholders based on perceived value of the work and the intended use. However, as a rule, if you're looking to use a popular or well-known song in an advertising context, synch rights will not come cheap.
When using wholly original music, there may be additional rights issues beyond the copyright issues highlighted above. For example, you need to make an inquiry as to whether the performer you wish to work with has an exclusive recording contract with a label. If so, a waiver from the record label will be required and you may need to cede ownership of the recorded music to the label (albeit with certain usage restrictions that you might be able to impose).
What other rights-based issues may be present?
While the above reviews the major potential pitfalls in content creation, the list is not exhaustive. Below are a few other rights issues to keep in mind.
Trademark Rights. To the extent you include any trade name or trademark in your content (e.g., if your main character orders a "Coke" at a diner or dons a Patriots jersey), you may need to obtain a license from the owner of that trademark or trade name for that use. As with copyright, there are certain narrow exceptions for fair use, but they are risky to rely on without advice from counsel.
Guild Issues. In the event there are people performing or appearing in your content that are members of SAG/AFTRA (which is highly likely if anyone appearing in your content is (1) a professional actor; or (2) a celebrity, including athletes who tend to appear on TV or film a lot), be aware that – even if you are not a signatory to any SAG/AFTRA contract and generally don't know anything about SAG/AFTRA – you may need to produce your content in compliance with the applicable SAG/AFTRA contract, which includes using a SAG/AFTRA signatory to produce the content or manage talent payments and paying minimum fees mandated by the guilds.
Other Third-Party Content. A license is required to publicly display any item subject to copyright protection that appears in digitally distributed video content, unless copyright protection for that item has expired. This includes photographs hanging on the wall of an apartment, paintings lining the walls of an office building, or a sculpture installed on the lawn of a public library, even if they only appear in the background of a scene you happen to be filming. While copyright protection does expire, its duration – for pre-1978 works, especially – can be difficult to calculate. However, it is not safe to assume that, just because something seems "old" it is not protected by copyright. As of 2015, works that were first published as far back as 1923 may still be protected by copyright and works created in the late 1800s may still be protected by copyright if they were never published!
While it may seem like many digital content producers ignore many of these obligations, there could be major payoff in following the rules of the road – being able to demonstrate that the content you create has the necessary intellectual property rights and protections can increase its value while drastically decreasing the degree of risk associated with being a producer of digital content. The more visible and popular your content becomes, the more likely your content will come under scrutiny of third parties wanting to share a piece of the pie.