Glossary

13.3 Legal Considerations: Copyright, Licensing, and Fair Use in Video Art

5 min read•august 1, 2024

Video artists must navigate complex legal waters when creating and sharing their work. laws protect original creations, granting creators exclusive rights to use and distribute their art. Understanding these laws is crucial for artists to avoid infringement and protect their own work.

and offer ways for artists to legally incorporate others' work into their own. Knowing how to obtain proper licenses and when fair use applies can open up creative possibilities while respecting intellectual property rights. These legal considerations are essential for exhibiting and distributing video art responsibly.

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  • Copyright is a form of intellectual property protection that grants the creator of an original work exclusive rights to its use and distribution for a limited time period
  • Copyright protection is automatic as soon as a work is created and fixed in a tangible form (registration provides additional benefits but is not required for basic protection)
  • Copyright owners have exclusive rights to reproduce the work, prepare derivative works, distribute copies, and perform or display the work publicly
  • In the US, copyright generally lasts for the life of the author plus 70 years (after this, the work enters the public domain)
  • Video art often incorporates many copyrightable elements including visuals, dialog, music, characters and more (each may have separate copyright considerations)
  • International copyright treaties, such as the Berne Convention, provide protection for copyrighted works across national borders, but laws still vary by country
  • When creating video art, it is important to consider the copyright status of all incorporated elements such as footage, images, music, text, etc.
  • Collaborations in video art can lead to complex joint copyright situations (contracts should be used to clarify ownership)

Licensing for Video Art

Types of Licenses

  • Licensing is when a copyright owner grants permission to another party to use their intellectual property, usually in exchange for a fee or royalties
  • Exclusive licenses grant permission to a single party, while non-exclusive licenses allow multiple parties to use the work
  • Creative Commons is a popular licensing system that allows creators to communicate which rights they reserve and which they waive for the benefit of other creators (rights can be reserved or waived for , commercial use, derivative works, and more)
  • Open source licenses, such as GNU GPL or MIT, are commonly used for sharing and collaborating on software code that may be incorporated into digital video artworks

Licensing in Video Production

  • Master use licenses cover the use of an original recording of a musical composition in a new work
  • Sync licenses grant the right to synchronize music with visual media (sync and master licenses are needed to use most commercial music in video art)
  • Talent releases are required from all identifiable persons, not background extras, granting permission to use their likeness in the video work
  • Location releases are needed when filming on private property or in some public spaces that have restrictions on commercial filming
  • Materials such as archival footage, photographs, news clips, etc. may require additional research and clearance for use (this process should be started early and factored into the project budget)

Fair Use in Video Art

Fair Use Basics

  • Fair use is a doctrine in US copyright law that allows for limited use of copyrighted material without permission from the rights holders
  • Fair use is determined by four main factors: purpose of the use, nature of the copyrighted work, amount used in relation to the whole, and effect on the market value
  • Purposes that can favor fair use include criticism, commentary, news reporting, teaching, scholarship and research (commercial use weighs against fair use)
  • Use of factual works is more likely to be considered fair than use of highly creative works (use of unpublished material is less likely to be considered fair)

Fair Use in Practice

  • Using small portions of a work is more likely fair use than large portions or the "heart" of the work (but even small amounts can be infringing in some cases)
  • If the use could substitute for purchase of the original work or deprive the owner of income, it is less likely to be fair use
  • Specific practices in video art, such as remixing, sampling, collage or found footage films, often rely on fair use when transforming the original work into something new
  • Examples of fair use in video art could include using short film clips for a critique or review, capturing background footage or music incidentally, or sampling a news broadcast to comment on current events
  • Fair use is an intentionally vague guideline, not a rule (claiming fair use will not prevent a lawsuit, it is a defense that must be proven in court)

Respecting Others' Copyrights

  • Understand and respect the rights of other creators (obtain permission, give credit and provide compensation when using others' intellectual property)
  • Research the copyright status and ownership of all materials you plan to incorporate (determine what licenses are needed and factor this into the project budget)
  • Consider copyright at every stage of a project - conception, production, distribution, etc. (be prepared to make changes if permission cannot be obtained)
  • When in doubt, consult an intellectual property lawyer for advice on specific situations (ignorance is not a defense against infringement)

Protecting Your Own Copyrights

  • Register your own works with the US Copyright Office to receive maximum protection (promptly register any infringements)
  • Use contracts to clarify copyright ownership between collaborators, clients, distributors and other parties involved in the video art production and distribution
  • Explore alternatives to using copyrighted material such as public domain works, Creative Commons licensed material, or commissioning original music and art
  • As an artist, understand your rights (you can control your work, negotiate for proper compensation, and take action against infringement)
  • Watermarking, encryption, and other technological protections can help deter unauthorized copying of digital video art files
  • Building a strong portfolio and fan base can help establish the value of your work and make it more difficult for others to pass off as their own

Key Terms to Review (19)

ASCAP: ASCAP, or the American Society of Composers, Authors and Publishers, is a performance rights organization that protects the rights of its members by licensing and monitoring the public performance of their copyrighted music. It plays a crucial role in ensuring that composers and songwriters receive fair compensation for the use of their work, which is especially important in the realm of video art where music is often an integral element. By collecting royalties from venues and broadcasters, ASCAP helps maintain the economic viability of artistic creation.
Attribution: Attribution refers to the acknowledgment of the creator or source of a work, ensuring that original authors receive credit for their contributions. In the context of video art, attribution is vital for recognizing the rights of creators, which intersects with concepts like copyright, licensing, and fair use. Proper attribution not only respects the intellectual property of artists but also contributes to ethical practices in the arts and media.
BMI: BMI, or Body Mass Index, is a numerical value derived from an individual's weight and height, calculated as weight in kilograms divided by the square of height in meters. This value is commonly used to classify individuals into categories like underweight, normal weight, overweight, and obesity, which can have implications for health and fitness. In the context of video art, understanding BMI can intersect with issues of representation, identity, and societal standards of beauty.
Broadcast rights: Broadcast rights refer to the legal permissions granted to individuals or organizations to transmit video content through television, radio, or online platforms. These rights are crucial for ensuring that creators maintain control over their work and receive compensation for its distribution. The concept intertwines with copyright laws, licensing agreements, and fair use provisions, all of which protect the interests of video artists and content creators.
Campbell v. Acuff-Rose: Campbell v. Acuff-Rose is a landmark Supreme Court case from 1994 that determined the boundaries of fair use in copyright law, specifically in relation to parody. The ruling clarified that a work could be considered transformative and thus qualify for fair use, even if it closely resembles the original, provided it adds new expression or meaning. This case is crucial for video artists as it sets important precedents for using existing copyrighted material in new and creative ways.
Cariou v. Prince: Cariou v. Prince is a landmark legal case that addressed issues of copyright, fair use, and artistic transformation in the context of visual art. The case arose when photographer Patrick Cariou sued artist Richard Prince over the use of Cariou's photographs in Prince's artwork, leading to significant discussions on how much transformation is necessary for a work to qualify as fair use under copyright law.
Copyright: Copyright is a legal protection granted to the creators of original works, including video art, that gives them exclusive rights to use, distribute, and reproduce their creations. This protection is crucial for artists, as it helps ensure that their creative expressions are not used without permission, while also influencing how digital storage and file management of video projects are handled. Understanding copyright is essential for navigating legal considerations and for properly archiving and preserving video art works.
Copyright Act: The Copyright Act is a law that provides creators with exclusive rights to their original works, such as videos, music, and art, protecting them from unauthorized use or reproduction. This legal framework enables artists to control how their creations are used, distributed, and monetized, fostering an environment where creativity can thrive while ensuring that creators receive recognition and compensation for their work.
Creative Commons License: A Creative Commons License is a public copyright license that enables creators to share their work legally while specifying the permissions and restrictions associated with its use. It provides a flexible range of protections and freedoms for authors, artists, and educators, allowing them to choose how others can use their creative content. By using these licenses, creators can maintain certain rights while allowing others to build upon their work in a legally clear manner.
Digital Millennium Copyright Act: The Digital Millennium Copyright Act (DMCA) is a U.S. law enacted in 1998 aimed at updating copyright laws to address the challenges of the digital age. It provides copyright owners with protections against the unauthorized use of their works online and introduces regulations for Internet service providers (ISPs) regarding the removal of infringing content. The DMCA balances the interests of copyright holders and users, particularly in the context of video art, by outlining fair use provisions and the process for takedown notices.
Fair use: Fair use is a legal doctrine that allows limited use of copyrighted material without obtaining permission from the rights holder. It is often applied in various contexts, such as criticism, comment, news reporting, teaching, scholarship, or research. The concept of fair use plays a significant role in video art, particularly in the creation of works that utilize found footage and appropriation techniques, where artists transform existing materials into new expressions while navigating the complexities of copyright and licensing.
Licensing: Licensing is the legal permission granted by a rights holder to another party, allowing them to use, distribute, or reproduce a specific work under certain conditions. This concept is crucial in protecting the rights of creators while enabling others to utilize their work, particularly in creative fields like video art. It often involves agreements that outline the scope of use, duration, and any fees associated with the use of the work.
Moral rights: Moral rights refer to the rights of creators to protect their personal and reputational interests in their work, allowing them to claim authorship and prevent any distortion or mutilation of their creations. These rights are distinct from economic rights, focusing on the personal connection between the creator and their work, which is especially significant in fields like video art where the creator's intent and vision play a critical role. The moral rights of artists are often recognized under copyright laws and international agreements, ensuring they maintain a level of control over how their work is used and presented.
Plagiarism: Plagiarism is the act of using someone else's work, ideas, or expressions without proper attribution, presenting them as one's own. This unethical practice can manifest in various forms, including copying text, images, or even video content. Understanding plagiarism is especially critical in creative fields where originality is paramount, as it intersects with issues like copyright and fair use, which are essential for maintaining intellectual integrity.
Royalty-free license: A royalty-free license is a type of licensing agreement that allows the buyer to use copyrighted material without having to pay royalties or licensing fees each time the material is used. This means that once the initial payment is made, the user can utilize the content, such as images, music, or video, without incurring additional costs. This type of license is particularly beneficial in video art, where creators often need to incorporate various media elements without facing ongoing financial burdens.
Streaming rights: Streaming rights refer to the legal permissions granted to use and distribute audiovisual content through online streaming platforms. These rights are crucial for video art, as they determine how and where a piece can be shared, affecting both the creator's ability to monetize their work and the platform's compliance with copyright laws. Understanding streaming rights is essential for navigating licensing agreements and ensuring fair use in the digital landscape.
Synchronization rights: Synchronization rights are the permissions required to use music in combination with visual media, such as video art or films. This type of licensing is essential when a creator wants to incorporate a specific song into their visual work, ensuring that they have legal authorization to sync audio and visual elements. Understanding synchronization rights is crucial for video artists to avoid copyright infringement and to navigate the complex landscape of music licensing.
Transformative use: Transformative use refers to the modification of a copyrighted work in such a way that it adds new expression, meaning, or message, thereby changing its purpose or character. This concept is critical in discussions surrounding fair use, especially in video art, where artists often build upon existing works to create something unique and innovative. Understanding transformative use is essential for navigating legal considerations regarding copyright and licensing within the realm of creative expression.
Unauthorized use: Unauthorized use refers to the act of using someone else's creative work without permission, violating copyright laws and the rights of the original creator. This concept is crucial in understanding how legal frameworks protect the intellectual property of artists, particularly in video art, where various media elements are often incorporated and reused. Recognizing unauthorized use helps artists navigate the legal landscape regarding copyright infringement, licensing agreements, and fair use provisions.
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