Being that most of us are career marketers or video professionals, copyright protection, ownership, trademarks, fair-use and other legal matters that relate to the internet can be a bit confusing to understand. How should one go about copyright protecting video content for the web? How and when can you use other peoples' copyrighted work in videos withouth infringing on the law? What can you do when your own material is being used without your permission?
Understanding the answers to these questions is of paramaount importance to those of us that are serious about our future in online video. On this week's creator's tip, Tim talks with a copyright and trademark attorney, Kenneth Kunkle, in order to get answers to these questions and more...
Understanding Video Copyright Law
The law says the copyright (from "right to copy") extends to original works of authorship fixing in a tangible form. That means if you create any original content – writing it down, creating a video, recording an audio – you own the copyright to that content by default.
While your material is copyright-protected from the moment you create it, in order to enforce that copyright should someone infringe on your work requires you to have it registered with the U.S. Copyright Office. This will protect your material for the lifetime of the author plus 70 years.
If you want to learn more about US Copyright law and guidelines for registering video and motion picture copyrights, check out this material from the US Copyright Office, titled, "Copyright Registration for Motion Pictures, Including Video Recordings" - here.
Common Copyright Myths & Misperceptions
There is a lot of misinformation out there about copyrights. Some of these include:
1) I need to put a copyright notice in my videos to prove I own it.
There is no requirement under the US Copyright Law that says you need to put notice within your videos to claim ownership. However, it never hurts to put it in since there are a lot of people out there who are confused about what is copyright-protected material and it could avoid the time and hassle of sending a Cease and Desist and/or taking additional legal action.
2) Mailing a copy of my work to myself or uploading it to my website proves creation and ownership.
This is not the best way to protect yourself in the event there is litigation for damages or ownership. If you are really concerned about protecting your content, spend the $35-$70 and register it properly with the copyright office. This will be the best evidence for your case.
3) Due to Fair Use, if someone uses my content on their site without my consent, there is nothing I can do about it.
The Fair Use Act does give people the ability to use things without compensating the original provider, however, if someone did use your work and you want them to stop, the Digital Millennium Copyright Act protects you. It was created to provide online providers a way to deal with claims of copyright-protected material. If your request to both the party and the hosting provider to take down your material are denied you can then contact a copyright lawyer to send a cease and desist.
Understanding Fair Use
Fair use is a concept that is in the copyright law as part of the statutes. While copyright law wants to value the artists or people who create things, they also realize we are in a society of free speech. Because of this, there certain uses of copyright-protected material such as when it’s being used for comment, criticism or scholarly works.
There are four factors the law looks at to determine whether something is being used within fair use.
- Purpose and character of the use
- Nature of the copyright work
- Amount and sustainability of the portion (ie how much did you use)
- Effect the use has on the market of the original content
Our own Grant Crowell has written a ton about online video and the law including several articles about Here are some good articles to review if you want to learn more:
- Parody Videos In Online Marketing – Fair Use Or Illegal?
- 7 Important Online Video Legal Questions On Copyright And Fair Use
- Is My Video Legal? Parody and Fair Use in Online Video: Q&A
- Legal Guide to Online Video : What Web Video Publishers Need to Know
- How to License Online Video & Protect your Ownership: Legal Video Tips
- 15 YouTube Copyright Tips for Content Creators & Marketers
- Understanding Legal Issues With Copyrighted Music In Video
- Legal Online Video and Fair Use – Sharing Versus Ownership
View The Full Video Transcript:
Hey, guys. On this week's Creator's Tip, we're going to talk with a copyright attorney and lawyer, Mr. Kenneth Kunkle about how you guys can copyright your video content for the web. That's coming up.
Hey guys, my name is Tim Schmoyer and welcome again to another Creator's Tip where every week, we just help you guys who are making online video content know how to make that stuff work and send out the best on the web and this week, we have a special privilege and opportunity to talk with Kenneth Kunkle. He is an attorney focusing on copyright, trademark, licensing, general business services for clients in technology, entertainment, and other creative-based industries. He definitely helped me out with a couple things that I've worked on in my own personal creative projects, and thank you very much for your help with those things, Kenneth. Really appreciate that. Want to talk today about copyrighting our own copyright, our own video content on the web. Kenneth, how can online video creators copyright their own videos and ensure that those copyrights stand even when they're just sharing those videos freely online?
Yeah, great question. You know, one thing that is commonly misunderstood about copyright, and it's a great thing to initially talk about, is you know, how do you get a copyright, and the answer to that is it's really simple. Under our current laws, all you really have to do is say create. The current laws say the copyright extends to original works of authorship fixed in a tangible form. That's all of the requirements at that point. So as soon as you take something original, an original creation, and fix it in some way, so if I sit here and I put it on a video, record it, or I write it on a blackboard, I've created it because I've done that creation and I fixed it in some way. Now if, on the other hand, I'm sitting around in my own, you know, my bedroom and I start to doing an interpretive dance, so there's no video camera, nothing there to record it, I have not created a copyright-protectable work. So original works of authorship fixed in an understandable form. Now, that said, that's a little bit different from the idea of how do you then protect it?
You own it at that point. How do you protect it? Well, under the copyright law, basically you have the ability to protect it in any way or monetize it however you want. So if you own it at that point, you can go out and monetize it. You can sell it, license it, however you want to do it. However, somebody comes out and says, and begins to infringe the work, you've got a little bit of a different problem at that point, and you do have to seek readdress with the court system.
One of the interesting things, well, the Congress said okay, we're going to let you have a copyright regardless of any registration at this point. We're going to require you to register it in order to enforce your copyright.
And so as a result, what you have to do at that point is file a registration with the copyright office. It's pretty cheap process, usually runs around 35 bucks, sometimes 70 bucks. It depends a little bit on the exact registration, and it's a pretty useful tool. If you have something that you really want to protect, registering it's great because by registering it soon after you create it and put it out to the world, you suddenly get the ability to collect attorneys' fees, my favorite. So the ability, the challenge is of proving your damages is lessened at that point, as well, which is the thing. As a result, big stick at that point in order to enforce your copyright.
Yeah, so how would you go ahead doing that? You said, you know, they go to a website of Congress or copyright site?
Yeah, to register it, you can actually do it a couple different ways. You can do it by paper but quite frankly, the Copyright Office website, which is Copyright.gov...
Fabulous website. If you have questions about basic copyright issues, great place to start if you're researching some of that out. They've got a lot of videos online. They've got, you know, various publications out there, but if you're doing a registration, they also have the ability, if you're going to be doing repeated registrations, you can sign up for an account there. It's a free account, and basically use that account to manage your registrations at that point, and you can do all the registrations online, and do it that way.
So do you, for people who are making online video, do you have to go there and you upload a copy of your video, or how, and it's $35 per video or just for the account or how does that work?
Typically, you know, I haven't, so looked at a couple of those things real specifically, but I believe it typically is per video, and you kind of go from there. Now that said, obviously, you do want to take little bit closer look as to whether registration is necessary for every situation.
Just have something you're a little bit concerned about, but you don't want to spend a lot of money or any money on protecting it, don't worry about it, but you haven't register it, you still have that - you still are the owner of it and nobody can come along and steal it from you.
So if someone does come along and try to steal it from you, could you then at that point then go register it at that point? Does that work?
Absolutely. It's required to register it to file a lawsuit. Now the downside is if you haven't filed it before, you know, that certain time period, you do have, your ability to collect some of the damages is somewhat diminished, but that's really the only main difference.
Okay, so would you recommend that someone goes ahead and copyrights all of their content just upfront, or would you say just, you know, do, I'm assuming you put, like, a copyright notice in the description text somewhere and then just leave it at that unless you do have, like, an infringement later?
Right, and again, you have, you own the copyright as soon as you create and fix it in a tangible form, but as far as registering it, you know, I try to tell people you know, I don't think you need to be hyper-sensitive to registering everything You know, use some judgment You know, how big are you at that point, how much of a likelihood is there somebody going to take it right away? You know, so use a little bit of judgment It's pretty cheap insurance, though. So keep that in mind.
Yeah, and that's for the lifetime of the content, or does that, it doesn't expire, right?
The lifetime of the copyright, which is currently the copyright protection for individuals is the lifetime of the author plus 70 years.
So it extends quite a ways.
You've got protection for quite a while.
Awesome. Well, we have some questions that some of you guys asked. Some of our viewers, Kenneth, asked a couple things in a previous episode that we did, and the first one is from Yasmine Carksperri, I think is how you say that, and it's I put a copyright notice in the description of my videos on YouTube. Is this enough to prove that I've created the video in its entirety and own all elements of the video?
The short answer is, you know, it's always nice to put in a copyright notice but under the current US law for copyright, there's no requirement that a copyright notice be put in there. So I still recommend people do it partly because, quite frankly, there's a lot of misinformation out there, and you don't want people getting the wrong idea that because there's no notice there, it's somehow, you know, given out to the public domain.
Yeah, does, it strengths the case for it, I'm assuming, or not really?
No, not really. I mean, it's a little bit helpful but from a purely legal standpoint, it really doesn't do a lot nowadays.
You know, this reminds me a little bit about the poor man's copyright that we, I sometimes hear about. It's a really common myth in the copyright world which says if I take a, you know, if I take a photocopy of my work and I mail it to myself and then, you know, just keep that in an unopened envelope, that's going to give me proof that I owned this or of when I created it. I've seen similar types of scenario schemes, I don’t mean that in a negative way, but uploading it to a website and [00:08:15] retain it, and that serves as your proof. Well, you know, at that point, you're really talking about evidence in a court case in the event that there's litigation and frankly, that's not necessarily going to be the strongest evidence. If you're really that concerned about protecting the work at that point, register it at that point because yes, it's a few, it's a little more than postage, but it's, you know, not that much more. So if you're that concerned about it, go ahead and get the stronger protection for the 35 or 70 bucks depending on the work.
Cool, great. Julian Neal asks when TV channels, viral video sites, new sites, whatever, and they download and re-upload my work or air them on their network without my consent, often without even crediting me, what can I do?
Yeah. Well, a couple things assuming it's not within the fair use exceptions of copyright. Now there's this area of law and we can talk about that maybe a little bit later, but, called fair use that gives people an ability to use things without compensating their provider. Assuming somebody's appropriated your work and you want to get it stopped, now the nice, the good thing, I should say, about the online world is a few years back, Congress enacted something called the Digital Millennium Copyright Act, and basically what it did was provided a framework for online providers to deal with claims of copyright. So let's say, for example, you, you know, you see this video posted on another person's website. At that point, you can contact them, obviously, and ask them to take it down. If they refuse, however, you do have one option of contacting their host company, the company that's hosting the website and saying this person is appropriating my content. Please take it down. At that point, that host provider is obligated to take down that webpage. Now the other party, the person who originally posted, then can, you know, rebut that and say, you know, no, I have the rights to this but quite frankly, most of the time, that will take down content that is blatantly inappropriately used.
Okay, and the way you find out who that host is, doing a simple whois search? Is that correct?
Or if it's on a site like Facebook or, you know, one of those types of sites, take a look at their legal listings and you'll see something called a DMCA policy, and that will often answer that question. Absent that, your only real option is to try to, again, if they don't take it down themselves, if the DMCA doesn't work, you're, at that point, really forced to consider filing a lawsuit at that point.
And that would require contacting you or another copyright lawyer and sending a cease and desist?
Yep, and it would also and probably more importantly at this, based on our discussion here, require that registration again.
Yes, good point, good, cool. Julian also asked I make cover songs and would like to monetize my videos on YouTube. I've looked into sites, you know, in order to purchase proper licensing. The fees are prohibitive, per, once cent per view. That isn't covered by my ad revenue on YouTube. How can I make cover songs videos on YouTube without breaking any copyright or going broke?
Well, you know, that's always the challenge with cover songs of any type. One of the things, you know, let me just talk a little bit about music, in general. One of the things you got to keep in mind when you're doing music of any type, whether you're putting it online or you're putting it on a CD or whatever, you got to keep in mind you got to figure out who to pay because reality is any song you hear on the radio, let's, I always use the example “I Will Always Love You,” by, you know, everybody's familiar with Whitney Houston. Course, that song was, however, written by Dolly Parton, and I raise that just to keep in mind that there's two copyrights in play whenever you have a song, a written song that's played on the radio, for example You have a copyright in the recording of the song by the performer, and you have a copyright in the composition as written by the composer. Those are two distinctly different things and quite frankly, the licensing is, also. So whatever you're doing, whenever you’re wanting to do a cover song, what you have to do is acquire the rights of the composer to perform that song or to record that song. If it is a live streaming environment, you still have to, the person that is streaming it, typically a separate company, is then obligated to pay the licensing fee. Now one of the nice things about copyright with regard to music is there's a requirement, it's one of the few instances where for the most part, the original songwriter actually has to give you the right to do so, and so for example, if I want to do a cover song, I can do any cover song without anyone's permission, for the most part. There's an exception to that but for the most part, I can go out and do that without anyone's permission as long as I pay the licensing fee.
Ah, so on YouTube I'm guessing there isn't any good, does YouTube pay that licensing fee, I'm guessing?
Yeah, what YouTube does is actually they pay a licensing, they do pay a licensing fee for the performance of the song, so when they're broadcasting it out. So as they're broadcasting it out, they do pay a licensing fee.
So the creator can't, like, a normal creator on YouTube then can't, even if they're performing someone else's song that's copyrighted, they can't then recoup any ad revenue necessarily from that video because YouTube's probably going to take that and send it in their licensing fees. So there's not really a good way to monetize cover songs, right?
Well, I can't speak specifically to the YouTube scenario in that case It does, you know, that would make sense to me, but I can't speak specifically to it.
Yeah. Sally asks I wanted to make a science parody of a Disney song that will be singing and playing and backing myself with my own lyrics and will not negatively affect Disney, but it does count as copyright, particularly if I monetize the video, right? And I think what she's asking here is this is a parody, so it's kind of like the cover song we talked about, but she's putting her own lyrics to the same melody. Is that going to be any copyright issues there?
Yeah, well, there is and there isn't, but you know, I mentioned earlier something called fair use, and basically fair use is a concept that's in the copyright law. It's part of the statutes. It says listen, we want to, we value the artists, the people who originally create things. We value those things, but we also recognize we're a society of free speech and we want to allow people to continue to express themselves, but we don't want copyright to get in the way. So what we're going to do is we're going to say there are certain uses of copyright-protected works that are fair to use of that same work and you know, one of the biggest example is usually it's under areas where things are being done for comment or criticism or scholarly works, and so they look at that, and the law basically says we're going to look at four factors and unfortunately, there's no bright line on this. It has to look at each and every use and how it's actually being done, but they say we're going to look at four factors to determine whether something is fair use or not. We're going to look at the purpose and character of the use itself, so how are you using it? So in the example that we're talking about here, somebody's taking it and they're using it to parody the original song. Now, parody versus satire, that's a bigger discussion, but they basically mean you’re using the work, your own work to comment or criticize on the original work, so you're using that little bit as some way to make a comment about it as opposed to just using the song as background for something else.
So you look at the purpose and character of the work. If it's for, you know, commentary, criticism, or whatever it may be, that's going to weight, the more it does so, the more that's going to weigh towards fair use. The nature of the copyright work is the second factor that they often look at, and that means, okay, a good example of that would be if I'm putting out a biography of factual information versus a completely original novel or fiction versus nonfiction. Fiction is going to have more protection and it's going to weigh against a claim of fair use if you're appropriating parts of it while nonfiction is going to weigh more toward the area of fair use if you’re appropriated pieces of that. The third factor is something called the amount and substantiality of the portion, back to that other one, though. If you're taking something from a Disney, obviously that's most likely going to fall in more, that's going to weigh a little bit more towards non-fair use because you’ve got a fictional work at that point. The amount and substantiality of the portion taken, now the example of this is, I mean, it's a lot of, a fancy way of saying is how much did you take?
Like, how much did you use from the original?
Right, exactly. Some people will, you know, try to put bright lines on this, say you know, okay, I only used five seconds and the law says I can use five seconds, or I only used 35 words and that says I can use that under the law. No, there is no bright line on that because you have to look at all of these factors in combination. When we talk about the amount and substantiality of the work, what we're talking about here is what are you taking? Are you taking the entire book, or are you taking a page from the book? If you're only taking one page from a book, is it the most important page of the book? Well, then that might weigh against you.
Okay, so for in Sally's case then, we're talking about music when she asked does this count as copyright. It sounds like it does.
Well, I was going to say the amount and substantiality is taking more, if you’re taking the entire song at that point, that's going to, again, weigh towards a finding of not or of being infringement as opposed to non-fair use. The last factor, however, there’s four factors, as I said, the last factor being, you know, the effect the use has on the market of the original. So is there any, and it's not that they actually are using it that way, but they have the potential to use it that way. So by using it and putting it in this different context, is this some way that Disney, for example, might want to use this exact same music at some point or another? Would they be using it in this same way? Are you taking away their opportunity? And the more, or a finding of that and the more of infringement, the less of that, the less of the finding of infringement. So again, you've got to look at all four factors. It's kind of long-winded; I apologize, but you know, keep in mind it's not a simple answer, but it's straightforward You just want to go through those four steps whenever you're looking at using somebody else's work at that point.
Great. Jabari Johnson's question says when using images and videos you don't own in your videos, is there a certain duration that you can use them for that will not be considered, like, a copyright issue?
Well, this kind of gets back to that fair use issue again, which is, you know, that third factor again, the amount and substantiality of the portion taken. There is no magic number, as I said. There's just no way of determining it. You know, use of a, you know, let's just say, for example, the use of a photograph in it. Yes, you may only show a photograph for, you know, two seconds but at that point, you used the entire photograph for the entire time in its entirety, so you know, you got to be very careful about that and often, you will need to acquire some type of licensing.
Yeah, I know a lot of people think on YouTube, in particular, that you can use up to 30 seconds of copyrighted music and not have to do any licensing with that. I'm assuming that's probably not true, is it?
Well, you know, again, I'm not going to speak specifically to YouTube. They may have certain guidelines that they utilize pursuant somewhat to the licenses they have, but for the most part yeah, there's no general, in the copyright law, there's no hard and fast rule about that.
Right, yeah, cool. Well, great, thank you very much for your time, Kenneth. You guys should definitely go check him out if you are a creator on YouTube or an online video creator or just a creative person, in general. He's really helped me with a lot of my legal stuff, been great, been a pleasure working with him, so I highly recommend him. His website Twitter is down below. You guys can go check it out. It's KunkleLaw.com or Kunkle_Law on Twitter. Again, both of those are linked up down there, so go check him out. If you have any questions or you'd like to hire him to help you take care of your legal copyright, trademarking, creative whatever, stuff, that would be great, so go check him out. Thank you, Kenneth for hanging out with us, appreciate your time and advice, and if you guys are new here, it's your first time, we'd love to have you subscribe. We do these Creator's Tip videos for you guys every week, so click that subscribe button either above or below this video depending on where you're watching it, and we'd love to have you join us and we'll see you guys again next week for another Creator's Tip.