As a preliminary note, you should have your concept firmly in mind so that when approaching the rights owners, you know exactly what rights you need and what are unnecessary. You should pay for only those you now need or reasonably contemplate needing during the expected life of the project. It is unlikely you will obtain blanket rights, "throughout the world, in perpetuity."
I have previously written about "The Use of Music on a Multimedia Web Site: The Legal Issues." This article covers the use of other media material and presumes that the material is still protected by copyright somewhere in the world and is not public domain. For a discussion of "When Do Copyrights Expire?" see that article as well.
Although you have the choice to create original content if appropriate licenses cannot be obtained, this article deals only with using previously created content. Numerous other issues present themselves when creating original material including but certainly not limited to the acquisition of rights through valid contracts and dealing with unions and guilds, which issues are beyond the scope of this article.
You must also obtain permission of the persons depicted in the photograph to use their likeness. The courts of the United States and some other jurisdictions have recognized a "right of publicity," a right that derives from the "right of privacy." These rights apply to all living persons and, under certain circumstances, those dead. Our likenesses and even our names may not be used for commercial purposes without our consent, which consent, if it is given at all, usually comes at a price. If the images used are of "ordinary" people, non-celebrities, at the very least you must obtain or have the photographer represent that he or she has obtained releases in writing from each of those whose images are distinguishable in the photograph. If these are celebrities, the fees go up, even assuming they are willing to allow their images to be so used.
Another interesting note is that also under certain circumstances, buildings may be the subject of copyright. You may need permission to either take a photograph of such a work or obtain a separate clearance from the copyright owner of the actual building in addition to the copyright owner of the photograph you use. Architectural works created on or after December 1, 1990, and any architectural works that were not then constructed and embodied in unpublished plans or drawings on that date are eligible for protection. (There are some qualifications on this protection so you should consult with an attorney about the same.)
And even photographs of now public domain works of art, perhaps called "classic art" such as the Mona Lisa or the like, may also be protected by copyright. While the underlying art may be free to use, a particular photographic depiction of that free artwork may be separately copyrighted and so a clearance must be obtained for using that photographic reproduction of the artwork.
Needless to say, if the underlying artwork is still covered by its own copyright, then permission to use it must also be obtained. These rights usually reside with the artist or the artist's estate.
When clearing certain works of art, an additional right must be obtained. Under the copyright law of many countries, including the United States, an artist that produces a limited number of copies of a visual art has what is known as a "moral right." This right protects the artist from changes made to the art and that the artist's name is properly used to identify the work.
You must obtain a clearance to use the copyrighted material from the owner thereof, usually the publisher if it is a book, or the author or whoever now owns the same. If the book is currently in print, it is usually not difficult to find out who owns it. But if the book is no longer in print but is still copyrighted, then searching out the author or the author's estate can be somewhat difficult. But the difficulty does not eliminate the requirement.
If, as part of a multimedia project, an off camera voice is going to read the text, then you must obtain additional rights from the text owner to do so. You may also need to obtain rights from the actor who is doing the reading.
If you intend to translate the text, separate rights are involved.
As a side note, under certain circumstances the use even of a person's name may become subject to a clearance. These circumstances have to do with whether or not the use may imply an endorsement of the product or is merely incidental. When in doubt, clear.
Included in this category may be the use of trademarked characters such as from cartoons. These are very popular with developers since coming out with a title featuring a well-known character offers higher visibility in a crowded marketplace.
You must obtain clearances from the owner of the clip, whether from television, film or radio. This is usually the film studio, television producer or radio show producer, but may not be. It requires some checking to see who owns what.
You must obtain clearances from each actor who has appeared in the clip, even those who are now deceased, the latter because of the right of publicity issue and/or union requirements that I mentioned above. Additionally, you must clear rights from writers and directors.
To amplify a bit on the union and guild requirements, in the area of film, television and radio, these organizations play an important part (as they do in music as I pointed out in "The Use of Music…"). Because of this, when licensing a clip, you will most likely be required by the terms of the license to pay and be responsible for all fees due the unions and guilds for the use of the material. These are referred to as "re-use" fees. You must check with Screen Actors Guild, Writers Guild, American Federation of Musicians, American Federation of Television and Radio Artists and perhaps other guilds representing other talent.
© 1996 Ivan Hoffman
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This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.
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