Copyright & Stock Images

INTRO I found a really cool: film/video/music/photograph/text/game/ online - can I use it?

What if I want to copy just a little part of that film/video/music/photograph/text/game … that’s ok, right?

I heard you can use things in the “public domain”---what is that?

Trademarks and Copyrights are basically the same thing---right?

I got hired for a freelance project and got paid big bucks. The guy who hired me owns what I did right? Because he paid me?

So I created a pretty cool: film/video/piece of music/text/game---how do I make sure that belongs to me?

What happens if I collaborate with someone on a project? Do we both own the copyright?

What’s “fair use?”

Copyright

Creative work is copyrighted when it

becomes published - print or electronic

Copyright belongs to the person or

organization that creates the work

As soon as the creator commits the

intellectual property to a tangible medium it is protected by copyright

Terminology

• writing Content

• images such as logos, illustrations and photographs and the unique way those images are assembled in a publication

Design

What is a Copyright?

• Fixed in a “tangible medium”—you have to be able to read it, see it, or hear it. For example, an impromptu speech that isn’t written down is not copyrightable.

• Original—you made it up all by yourself. • Minimal creativity—the work is the

product of at least a minimal level of creativity. (Pretty low standard)

A copyright gives an author or

other creative person certain protections in

their work as soon as the work is

created. To get a copyright the author’s work

must be:

Who seeks copyright protection?

Designers

Artists for their paintings, drawings, sculptures

Photographers

Authors for novels,

textbooks, plays, movies

Business owners for manuals,

website content,

advertising

Musicians for musical

compositions

Software Developers for their computer

code

What works are protected?

Literary works

Musical works, including any

accompanying words

Dramatic works, including any

accompanying music

Pantomimes and choreographic

works

Pictorial, graphic, and sculptural

works

Motion pictures and other

audiovisual works

Sound recordings Architectural works

Fonts

Customers should pay to use fonts

“Using a font” does not include

sending it to prepress along

with other files for a job

Prepress should pay for their own

fonts

If a job requires a font not already in

the printer’s collection, the

printer buys the license to use it

I’m using an image I found through Google. If it’s on the internet, doesn’t that mean it’s free?

No. Just because an image is on the internet, it doesn’t mean the image is

free to use.

You may still need the correct license to use it. There is a difference between an image being online and an image being “in the public domain” (the term given

to content that is not owned or controlled by anyone).

Some Background:

The founding fathers wanted to encourage creativity so they created what is informally referred to as the patent, trademark, and copyright clause of the Constitution: • “The Congress shall have Power To…promote the Progress of Science and

Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

• (Article 1, Section 8 in case you feel like reading it in your spare time.)

The Copyright Act itself is a federal law that covers all the legal rules related to copyrighting.

What Rights do Copyright Owners Get?

• reproduce the work • prepare derivative works based upon the work • distribute copies of the work to the public by sale or

other transfer of ownership, or by rental, lease, or lending

• perform the work publicly • display the copyrighted work publicly • in the case of sound recordings, to perform the work

publicly by means of digital audio transmission • in the case of a “work of visual art” the author has

certain rights of attribution and integrity

Copyright owners

enjoy the exclusive right to:

How do I get a copyright?

You technically have a copyright as soon as you “fix

it into a tangible medium” BUT, and this is a big BUT:

You must register you work with the United States

Copyright Office in order to enforce your rights.

Common Myths:

• A: No…this just puts people on notice. You still need to register in order to sue.

Q: Isn’t putting a © symbol next to

what I create enough?

• A: No again. You still need to register your work in order to sue.

Q: What if I put my work in a self

addressed envelope and mail it back to myself?

So how do I register?

•The cost of a copyright application is $45

• In some cases, you can register a series of works for one application fee.

Depending on what you are

copyrighting, you will need to fill out

one of several forms available at

www.copyright.gov

Limited Duration:

Copyrights do not last forever. Depending on the type of work, the copyright will last for 70 years after you die, or 120 years from its initial creation.

Once the copyright expires, the work enters the “public domain.” Think the Mona Lisa…

Permission

You will always need to ask permission to use any part of (even if it’s a little teeny itty bit) of a film/video/music/photograph/text/ game/ that’s not yours. • Well…almost always.

When Can I get away with NOT asking for Permission?

Works for which the copyright has expired. (tough to figure out unless its really really old)

Works clearly and explicitly donated to the public domain.

Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or spontaneous speeches or performances that have not been written or recorded).

Works consisting entirely of information that is common property and contains no original authorship (for example, standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

Titles, Names, Short Phrases and Slogans = Trademarks

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents are NOT protected by copyright. This is what trademark law is for.

A trademark, unlike a copyright, is a source identifier. The owner of a trademark gets a totally different set of rights than those granted to a copyright owner.

Ideas, Procedures, Methods, systems, etc. = Patents

Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration are NOT protected by copyright.

This is what patent law is for.

What is “Fair Use”?

• criticism, • commentary • news reporting • teaching • scholarship • research.

Sometimes you can use copyrighted

work for the

purposes of:

To determine Fair Use

The factors used to determine whether your copying constitutes fair

use include:

the purpose and character of the use,

including whether such use is of a

commercial nature or is for nonprofit

educational purposes.

the nature of the copyrighted work.

the amount and substantiality of the

portion used in relation to the

copyrighted work as a whole.

the effect of the use upon the potential market for or value of the copyrighted

work.

Don’t rely on Fair Use Just because you may have a fair use defense, doesn’t mean you’ll want to test it.

This is a very fact heavy defense…..

Law suits are expensive.

If possible: ask permission!

Lets talk about joint works A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

The authors of a joint work are co-owners of copyright in the work.

Joint Ownership has serious implications …

More specifically…. Each co-author will own an equal ownership share in the work. This will occur even if one of the co-authors has contributed a greater quantity of the work than the other co-authors. Each co-author will own an "undivided" interest in the entire work.

Any co-author, without the permission of their fellow co-authors, may grant non-exclusive rights to the work to third parties. (However, a co-author may only grant exclusive rights to the work to third parties if the co-author obtains the prior consent of the other co-authors.)

Co-Authors

Each co-author has a duty to account to the other co-authors for any profits obtained from the exploitation of the work.

A co-author has the right to assign his/her ownership share in the work to a third party or to bequeath his/her ownership share to his/her heirs.

Each co-author will be entitled to equal authorship credit for the work upon its publication.

Get a collaboration agreement in place

The best way to sort out joint ownership is through discussion and agreement at the start of a project.

Figure out who owns what and how $$$ will be distributed based on the contribution.

Employee vs. Independent Contractor

•a) work for someone and •b) when you work for yourself

Now its time to discuss

ownership rights

when you

Work for Hire Agreement

A smart client will ask you to create the work as a “work-made-for-hire.”

That way, even though you created the work, the client owns the copyright.

Work-for-Hire

If work is created by an employee as part of the job responsibilities, the organizations owns the copyright

If the image is created on commission the artist owns the copyright unless the contract between client and artist includes a specific provision “work-for-hire” that transfers ownership to the client

A lot of the times, the commissioned work doesn’t exactly fit the “work-for-hire” requirements. In that case, the client will ask you to “ASSIGN” your rights---in writing.

What is a “Work Made for Hire”

•A work prepared by an employee within the scope of his or her employment; or

•A work specially ordered or commissioned for use as a contribution to a collective work: •as a part of a motion picture •as a part of other audiovisual work, •as a translation, •as a supplementary work, •as a compilation, •as an instructional text, •as a test, •as answer material for a test, or •as an atlas

The Copyright

Act defines a “work

made for hire” as:

Employees

As an employee, any work you create, within the scope of your employment is automatically owned by… YOUR EMPLOYER.

No extra paperwork needed.

The implications of this: •Since your employer owns the work, you can’t then use what you created later

at a new job … or even to post on your website or to include in your portfolio. •You can only do these things if you: GET PERMISSION.

What if I’m a freelancer If you are creating work as a freelancer, you are probably being hired as an • INDEPENDENT CONTRACTOR.

The person hiring you doesn’t pay your health insurance, your employment taxes, etc.

As an independent contractor, you retain ownership of everything you create.

This is true even if the client pays you for the work

Assignment vs. Licensing

Assignment means you give the client ALL of your copyrights.

If you don’t want to give up ALL your rights, you may LICENSE part of your rights.

Implied License to Use

What happens if you get hired to create something, but you never sign a written agreement?

Can you prevent the client from using your work if you are mad at him - or if he doesn’t pay you? Probably NOT under Copyright Law.

Courts, based on the conduct of the parties, will usually find that the client was granted a non-exclusive license for the intended use.

You’d have to pursue this under a breach of contract claim, if you don’t get paid for your work.

Intellectual Property Law Intellectual property rights (IPRs) allow individuals to claim and exercise rights in their creative and innovative works

Some IPRs are well known • copyright, patent, designs, and trademark

Others are known primarily to specialists • trade secrets, geographical indications, semiconductor chip topography

rights, plant varieties and performers rights.

A work may be protected by several IPRs.

Creative Commons

• Creative Commons Licences are © licences.

– work can only be CC licensed by rightsholder

– can’t be used to prevent © exceptions - fair dealing

– can’t be used to protect things not protected by © - ideas

• http:/ / creativecommons.org/videos/mayer-and-bettle2

• Links to find Creative Commons works

– http:/ / commons.wikimedia.org – http:/ / flickr.com/creativecommons

• Big CC Content Directory – http:/ /wiki.creativecommons.org/Co

ntent_ Directories

What is Creative Commons?

Author uses this license to share his or her work to the public and still have control over how it’s used (derivative works, non profit, educational, etc)

The public must always give credit to the author.

You can use Creative Commons for your work as well.

The Creative Commons Creative Commons licenses are non-revocable.

Works under a Creative Commons licence must be used by licencees in accordance with its terms. CC licences can vary considerably in scope.

Attribution = you must attribute the author and/or licensor in the manner they require.

Non Commercial = you may not use the work in a manner primarily directed toward commercial advantage or private monetary compensation.

NoDerivatives =\ you may only make verbatim copies of the work, you may not adapt or change it.

ShareAlike = you may only make derivative works if you license them under the same Creative Commons license terms.

When can you use an image?

When it’s qualified under Fair Use

When the author declares it public domain

When the author licenses it under an alternative model

If you ask permission from the author

If you are the author

Searching and Sampling Fair Use? What’s that? •Under this clause, you can take copyrighted material and transform it into something else for criticism, education, research, or parodying the original material. •Examples: •Saturday Night Live skits •Using bits of work in a review of said work •Limited copying made by a student for academic research

Fair Use is a privilege, not a right, so don’t abuse it.

No matter what, always make a habit to give credit to the author and link back to his/her work.

Searching and Sampling

There is no real solid line to determine if an image is Fair Use or infringement

Use the four factors to determine Fair Use • The purpose of the derivative work (educational, parody, research) • Nature of derived content • Amount of original work used • The effect that the new work has on the market value of the original

Stock Images • http:/ /www.morguefile.com/ • http:/ /www.flickr.com/creativecom

mons/ • http:/ /www.imageafter.com/ • http:/ /www.sxc.hu/ • http:/ /www.everystockphoto.com/ • http:/ /www.studio25.ro/ • http:/ /www.freepixels.com/ • http:/ /pictures.fws.gov/ • http:/ / images.jsc.nasa.gov/ • http:/ / freestockphotos.com/ • http:/ /www.flickr.com/ • http:/ / freerangestock.com/ • http:/ /www.freedigitalphotos.net/ • http:/ /www.historicalstockphotos.c

om/

• http:/ /www.pixelperfectdigital.com/

• http:/ /www.freemediagoo.com/ • http:/ /openphoto.net/ • http:/ /www.stockvault.net/ • http:/ /browse.deviantart.com/ reso

urces/stockart/ • http:/ /www.dreamstime.com/ free-

photos • http:/ /www.fotolia.com/FreeCont

ents • http:/ /www.iconspedia.com/ • http:/ /www.bibleplaces.com/ • http:/ /www.photolib.noaa.gov/

Advantages of Stock Photography

Stock is GREAT for Comps and Mock-Ups

Stock Photography is Cheaper and Quicker Than a Photo Shoot

Stock Photography is Available for Instant Download

For Brochures and Smaller Tactics, Stock is Fine.

Problems with Stock Photography

Stock Photography is NOT Original.

Stock Photographs Can Be Bought By Anyone.

Stock Photography is Often Cliché.

Pitfalls to Avoid Using a Stock Photo When You Could Easily Shoot or Illustrate Something Yourself

Using Cliché or Overused Photos

Creating Bad Clipping Paths and/or Masks

Using Pictures That Don’t Relate Well to Your Content

Buying the Lo-Res Version Because It’s Cheaper

Using Imagery That Looks Outdated or Non-Professional

Using Pictures That Look Overposed

Unnatural Cropping

Poor Cloning to Extend the Photo

Quickly Faking Your Product Into the Photo

Final thoughts Just because a work available on the internet is shown as ‘public domain’ or CC-licensed, doesn’t mean it is – it’s a common sense call.

Some rightholders are willing to actively seek out possible Internet-based infringers… • http://netcopyrightlaw.com/

…others are building automated tools for them: • http://www.virage.com/news/releases/2007/2007-04-05.xml

A basic understanding of © law, and a certain amount of record keeping can go a long way to preventing that nasty lawsuits

46