With current market conditions placing even greater focus on expense control, broadcasters and production companies are finding that "fair use" of copyrighted materials can help them save thousands of dollars in production expenses. However, the best way to realize those savings is by avoiding penalties for not conforming with the rights governing the use of other people's content.
"When Fair Means Free," an article appearing in the November/December issue of MFM's The Financial Manager (TFM) magazine, describes the general conditions that permit media companies to use portions of a work protected by copyright without the written consent of the copyright owner.
Written by Thea Kerman, an attorney who specializes in media and entertainment industry issues, the article delves into the gray areas of copyright law. Illustrating the challenges associated with interpreting "fair use" laws, Kerman contrasts the U.S. Supreme Court ruling that upheld 2 Live Crew's right to legally copy the first line and famous bass riff of Roy Orbison's Oh, Pretty Woman with lawsuits that punished two news organizations for using small segments of a copyrighted video shot by a couple covering a major news story.
Kerman suggests that one general principle concerning fair use was provided by former U.S. Supreme Court Justice Sandra Day O'Connor, in the 2 Live Crew case. "Take not from others to such an extent and in such a manner that you would be resentful if they so took from you."
Another perspective was provided by Justice David Souter. In commenting on the same case, Souter used the popular comment from English author Samuel Johnson that "no man but a blockhead ever wrote, except for money."
In addition to outlining the four factors that need to be considered in determining "fair use" of copyrighted material, Kerman shares a few principles of her own. They include not using more of the copyrighted work than is absolutely necessary for making your point and not relying too much on any single source.
With that in mind, I encourage you to consult with your counsel or an expert like Kerman before making a decision about whether your planned use of copyrighted material would be considered "fair use." Meanwhile, MFM members (and other TFM subscribers) may also read a few more of Kerman's insights in the current issue of our magazine.
Music Rights
Music is one category of copyrighted material that requires constant monitoring. Keeping in compliance with music rights is getting increasingly complex, as television stations move to create content for use on new media platforms.
While stations are free to distribute their original programs like local news and sports shows over the Internet or a video-on-demand service, they may not have the rights to use the music that accompanies those programs. In addition, broadcasters need to be diligent concerning the use of music that's included in advertising or viewer-supplied videos.
To provide the latest developments concerning music rights, MFM has asked David Oxenford of the law firm Davis Wright Tremaine LLP, to moderate a Distance Learning Seminar on the subject. Scheduled for next Tuesday, from 4 to 5 p.m. ET, the tele-seminar will discuss the rights required for using music in connection with the operation of broadcast and cable companies, in both the traditional media and in digital applications. Specific topics of interest to video companies that Oxenford will cover include:
- Productionof videos using music.
- Theuse of music in commercials.
- Musicin station promotions, downloads and Web site user-generated content.
More information about the CPE teleconference, which is open to non-members of MFM, may be found on MFM's web site, at http://www.mediafinance.org/index.aspx?PageID=378.
Of course, in today's economy, we need to evaluate every dollar we plan to spend. So, let me help you put together a quick ROI analysis to justify investing a little time and money on educating yourself about copyright issues.
If you favor the stick approach as motivation for spending, you can consider "PRO IP" — the Prioritizing Resources and Organization for Intellectual Property Act of 2008 that President Bush recently signed into law.
In addition to allowing three times the assessed damages to be awarded against those who counterfeit protected goods, it strengthens criminal laws relating to IP infringement and allows the government broad authority to seize any materials or goods relating to infringement investigations. Treble damages, not to mention the time (and money) spent preparing your defense can put a sizable hole in both your budget and your reputation.
Moreover, it creates a position for an "Intellectual Property Enforcement Coordinator," a presidential appointee who will coordinate IP investigations among government agencies, and it provides additional funding for investigations into alleged copyright infringement.
So, if copyright compliance isn't keeping you awake at night, it's likely that some federal employees, who are also working for an organization that's in need of revenue generation, will be burning some midnight oil over the issue.
If, like me, you are a "half-full" kind of person and prefer the carrot approach, there is still a compelling ROI for investing to ensure that your organization is complying with copyright requirements.
As attorney Thea Kerman pointed out in her article, knowledgeable lawyers can save companies thousands of dollars in rights payments. The second reason is that it's essential for our industry. The industry's success depends upon the talented creators and performers whose work allows us to create the audiences advertisers want to reach.
As Justice Souter and Samuel Johnson remind us, these creators of valuable content are not blockheads. And we certainly aren't, nor can we afford to be.
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