As a parent of a student musician, I take videos of my child’s public performances. Sometimes music schools or concert sites have created videos of concerts where my child has performed and put them online.
Over the years, I’ve seen other parents create social media posts that adapt a video or photo someone else has taken of their child. Or, they may have posted a video they made of their child performing a modern piece of music. Or, the message can include not only their child’s art, but that of other children as well. They think that because the video or photo contains their child, it’s up to them to publish it. But this is not necessarily the case.
Recently, someone emailed me asking about a company that offered mortgage refinance and foreclosure relief services (which I called Easy Refi, Inc. in a previous post. ). The company is over 2,000 miles from me and I had never heard of it until I received this email.
But without permission or attribution, Easy Refi created a website by copying an article that quoted me. As a result, my name ended up on the Easy Refi website without my knowledge or permission. I was not alone – quotes from several other professionals were also used in the same way.
This article discusses some of the laws that apply to videos, photos, and articles posted on the Internet.
Just because it’s published doesn’t mean it’s in the public domain.
Some people think that if something is on the internet, it’s in the public domain and it’s easy game to copy. Not true! Giving public access to an article, photo, music, video, or other art does not place it in the public domain.
These same people wouldn’t claim a song is in the public domain just because it’s played in a mall (which no doubt paid for a license to play it). Nor would they claim that all books in a public library are in the public domain just because the public can read them or that all art in a museum is in the public domain just because the public can see it. . The Internet is no different.
What is copyright?
Everything is copyrighted when created. Copyright applies to all “original works” when they become “fixed”.
The author’s original works are not limited to literary works. Musical works and lyrics, choreography, graphic and sculptural art, motion pictures and videos, sound recordings, architecture and certain compilations and collections are among the works that may be original works of authorship under of copyright law.
To be protected by copyright, a work must be fixed – it cannot simply exist in the mind of the author. A work is “fixed” when it is captured in a sufficiently permanent medium so that it can be perceived, reproduced or communicated for more than a short period.
Copyright protection is automatic
Many people believe that a copyright is only effective if registered. In the United States, every original work of authorship is automatically copyrighted when corrected. For the avoidance of doubt, posting a photo, video, article, or other work on a website causes the work to be corrected, so it is subject to copyright.
Registration and copyright notices can be beneficial to authors. But an author does not need to register a work for it to benefit from copyright protection. Similarly, a copyright notice is not necessary for a work to be protected by copyright law.
Copyright does not only protect the right to make copies of a work. It also protects the right to publicly perform or display a work, sell, rent or lend copies of the work to the public, or prepare derivative works.
Other legal protections for commercial use
Copyright law is not the only law that may apply, especially when a work is used for commercial purposes. For example, several states recognize the right to privacy or the right to publicity which prohibits the use of a person’s name, likeness, voice or any other recognizable characteristic for commercial purposes.
Only 14 states – California, Florida, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia and Wisconsin have right-to-publicity laws. Other states recognize a common law right of publicity.
Maryland, where I am located, recognizes the unpaid appropriation of an individual’s name or likeness under the right to privacy. This right most often applies when a celebrity’s name or likeness is used for commercial purposes without permission. However, in Lawrence v. AS Abell in 1984, the Maryland Court of Appeals ruled that a right of publicity applies where a party has “unduly permitted the enrichment at the expense of another”.
Trademark and unfair competition laws may also apply to the commercial use of a person’s name or likeness, particularly if the use gives the false impression that that person endorses a product.
The public domain is not a place
Some people believe that the public domain is a place similar to a public square. They think that because anyone can access the internet, anything on it – or at least anything not behind a paywall – is in the public domain. But the public domain is not a place – it describes who owns copyright and similar rights. So when a work is in the public domain, the public, rather than the author, owns the copyright.
Some authors voluntarily waive any copyright they might otherwise have in a work.
Works can end up in the public domain in several ways. The works of the United States government and the works of state and local governments (for example, the text of laws and regulations) are in the public domain.
A work will also be in the public domain after its copyright expires. Music by Bach, Beethoven and other composers can be performed freely as all copyright has expired.
But this does not mean that someone can copy the printed music or the audio recording of the works of these composers. The publisher or publisher may own a copyright in a particular edition of a public domain work, or a recording company may own the copyright in the audio recording.
These laws require complicated legal analysis, which can be very fact-specific.
Best practice is to assume that everything is subject to copyright or other legal protection and not to use the works, name or likeness of other people without their written permission, preferably after consulting a lawyer.
How do I obtain permission to use a work?
License – websites such as iStock offer images, photos and other visual works for use by paying a license fee. Even if someone pays a license fee, they should read the license to understand its scope before using a work. Some licenses limit the number of uses, require attribution, or impose limits on how the work may be used.
Creative Commons – Creative Commons, Wikimedia Commons, and similar sites offer several types of licenses for works. But it’s important to note that just because a work is on these sites doesn’t mean it’s fair game for all uses.
Obtain permission – For less formal use – such as copying a home video of a child’s concert – it may be sufficient to obtain written permission to use the work. However, when obtaining consent, it is important to carefully describe how the work will be used, and the work should only be used if permission is granted, the work should only be used in that way .
Create your own works – I take my own photos and videos of my child and my cats to post on social media. I also create my own content, such as this article, for my website. Because I created these “works”, I own the copyright and can use these works as I see fit (but others may not).
Beware of “layers” of legal protection – Some works, such as music videos, may include multiple layers of protection under copyright and other laws. For example, the person who created the video owns the copyright to the video itself. But the composer of the music performed owns the copyright in the music. And the musician might have the right to privacy or publicity – to name a few possible layers. In addition, a work or right may be protected by both federal law and state law, or even by the law of another country.
This series draws on Elizabeth Whitman’s experience and passion for classical music to illustrate creative solutions to legal challenges faced by businesses and real estate investors.