THE USE OF PROTECTED MATERIALS IN

MULTIMEDIA PROJECTS

IVAN HOFFMAN, B.A., J.D.


When developing a multimedia presentation, whether for a CD-ROM, on the Internet or a hybrid CD which has a link to the Internet, the producer or web site owner who uses material from other media must be careful about obtaining clearances for the same. And the thicket of rights through which the user must traverse is daunting.

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.

PHOTOGRAPHS

You must obtain clearances from the owner of the photograph. This is most often the photographer. When you see a photograph in a magazine or book, it is unlikely that that magazine or book owns the copyright in the photo. What is more likely is that the magazine is merely a licensee for some limited use and that all other rights remain with the photographer. You may obtain clearances, if at all, only by negotiating with the photographer, the photographer's agent, or perhaps a clearance house.

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.

TEXT

This category covers text of all sorts such as from books, magazines or the like, which are protected under the copyright law.

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.

TRADEMARKS

The use of trademarks must also be cleared. What is or is not a trademark is a tricky question if the mark has not been registered. If you see an "R" in a circle, then the mark enjoys federal trademark protection. But if it is merely a TM or SM then the mark has not been registered. And if you see nothing next to some brand or name, it still may enjoy trademark protection! A search is necessary in order to determine whether a given mark or name must be cleared and indeed who owns either.

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.

FILM, TELEVISION AND RADIO

Initially you should be prepared to pay what in legal jargon is referred to as a "bundle" for these rights. Obviously so, since the media from which you are seeking rights is well marketed and your desire to use the same underscores their value.

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.

OVERVIEW

No matter what other media you seek, you will need to include in the discussion and ultimate license issues such as:
  1. the nature of the usage. These issues include whether for CD-ROM, The Internet, or both, and exactly what platforms you intend to develop the material for (Windows, DOS, the Mac, DVD etc.);
  2. whether you need the right to use the material for marketing and promotional campaigns;
  3. what languages and territories you need, which also entails perhaps additional clearances since not all owners own all rights for all languages and territories;
  4. how much time you need to adequately exploit the material;
  5. and perhaps a host of other issues depending upon the exact nature of your intended use.

CONCLUSION

There are many sub-issues that arise in doing these kinds of deals, issues involving defamation, invasion of privacy, unfair competition and e-THICS(TM) to name a few. I have not tried to be exhaustive of all the issues in this article and each of those issues and more must be considered in any use of material, whether licensed or created by you. It is best to work closely with an attorney who can perhaps help negotiate both the terrain and the licenses.

© 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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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.


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