Confounded by some of the legal issues created by the growth of digital media? Some ideas and solutions were exchanged at Bill Sobel’s New York Media Information Exchange Group at breakfast this morning.
On the panel:
Fred Benenson, Head of Outreach, Creative Commons;
Ian DiBernardo, Partner/Intellectual Property Specialist, Stroock & Stroock & Lavan LLP;
Melinda Lee, Co-Founder, UncensoredInterview.com;
Robert Rosenberg, SVP/Counsel, Digital Media, Showtime Networks, Inc.
Here are some of the highlights of this conversation:
A major announcement from Fred Benenson: Wikipedia has just reached agreement to use Creative Commons licensing for its digital rights. This involves many millions of Wikipedia articles.
Melinda Lee: Critical for an internet content producer business to have a solid lawyer, to be sure rights matters are addressed.
Ian DiBernardo stresses the importance of having a process in place before starting to market the content. Releases are critical – should be signed and agreed to before the cameras start to roll. Releases need to be as broad as possible, to cover future rights and needs.
Robert Rosenberg: almost every media company is both a licensee and a licensor, which is why releases and rights agreements are so critical.
Fred Benenson: That’s why Creative Commons exists, making it easy for users to contribute content via public licenses.
Limor Schafman: Let’s get back to implications of the Wikipedia deal.
Fred Benenson: I can’t stress enough that this is big news. Wikipedia was started before Creative Commons was around. Wikipedia went to a different license, but it turned out to have peculiar restrictions. It was pretty onerous for some users. Creative Commons enforces many of the same terms, but is more accessible. Wikipedia creative community has now voted to switch to Creative Commons.
Ian DiBernardo: The first issue that needs to be clear is, what portion of the creative work is being licensed? What rights are contained in that license? All needs to be specified.
Robert Rosenberg: From the other side, we approach the rights discussion differently – with every piece of content, it has a life span, depicted by different windows. Need to be clear what’s being licensed, which of those windows and at what price. What rights do we want, and at what price?
Melinda Lee: We rely on independent contractors and need to know what we own and what we can license out, so the releases are extremely important for us.
Fred Benenson points out the length of copyright – at what point is the material no longer valuable, despite the fact that copyright itself may last for a great many years. For the most part, value is pretty fleeting, regardless of copyrights.
Robert Rosenberg agrees – value is determined by the window. It’s like driving a new car off the lot – as soon as you drive it off the lot, the value goes down substantially.
Ian DiBernardo: Copyright is the default. Those rights remain with the owner and creator. The important thing is to understand the client’s business model, and make sure the legal documents protect that model through parsing the rights. What type of media, what type of uses, the possibilities are almost endless for ways to carve up the rights.
Limor Schafman: But how do I maximize the value of my rights?
Ian DiBernardo: You begin from the idea, I’ve got to own everything. What you do with those rights afterwards is a different question.
Melinda Lee: We want to look at the different business models that are emerging and seize the opportunities that present themselves. As our company has grown, we’ve found that the ability to experiment with different business models has a lot to do with the fact that we’ve reserved the rights to do so. We want to own content so that we can license to other people. That allows us to partner with other companies. Owning our own content lets us do the deals.
Fred Benenson points to the Viacom lawsuit against Google, over YouTube. Content on line is very hard to make exclusive. The more your model relies on exclusivity of content, the harder it’s going to be to get content on line. And there are huge challenges now to standard copyright law.
Limor Schafman points out that YouTube has now been ordered to pay royalties to ASCAP over music streaming.
Robert Rosenberg: The issue in the YouTube case with Viacom is, at what point is YouTube aware that people are posting copyrighted content, and what can they do/are they doing about it. YouTube seems to be putting measures in place to try to address this – ways to take digital fingerprint of a piece of content, so they can track usage and spot illegal use of that content.
Fred Benenson: Creative Commons can help with some of that problem. But the tools can get dangerous at some point – kind of like “terminators” roaming YouTube in robotic search for fingerprints, where the use may indeed be fair.
Robert Rosenberg: My understanding of the tool is, if what’s found is something that matches just a small or fair amount of content, it’s flagged for human rule, where a human gets to decide if it’s fair or not.
Question for Ian on fair use, from a person who recorded material incidentally – background music in open air parks, for example.
Ian DiBernardo: One factor is the amount of the work that is copied, whether it’s factual, the nature of the new work – is it purely commercial or are you creating a new work? It’s a very fact-specific inquiry, with no hard and fast rules. Lawyers do get involved, but in general, the less of the work used, the better, and if it’s transformative, like a parody, or being used for some purpose such as education, those can all be factors.
Question about branding and transparency. Is the FTC going to crack down on “socializing” videos by having interns post comments and send videos to friends, from a “truth in advertising” standpoint? Ian DiBernardo says there’s no indication the FTC plans to get involved in that kind of thing. And Robert Rosenberg says it’s all in the specifics of the situation – is it directed towards children or adults, etc. – probably wise to have it checked by an attorney.
Question from a photographer who says she’s found her photos being sold by someone she doesn’t know on eBay. Robert Rosenberg says – buy it! By doing so, you have the evidence you need to go after an individual and to get eBay to shut this kind of thing down. But Ian points out that if the seller bought those photos from a gallery, say, then they’d have the right to resell their own copy of that photo.
Question about logos and trademarks. Robert Rosenberg says it can be territorial, depends on use, chance of consumer confusion between conflicting trademarks, etc. Wise to do searches of USPTO.gov for existing trademarks.
Question for Melinda Lee – you said good attorney. What kind of business should be needed? Melinda Lee explains that her company has a number of different attorneys – business attorneys, patent/trademark attorneys, etc. Depends on what type of business you’re starting up. Ian DiBernardo adds – it all boils down to needing a lawyer who understands your business, and it’s rarely going to come down to just one lawyer or firm.
Limor Schafman: Final advice for the audience?
Robert Rosenberg: It is still evolving, so it’s important to talk to a lawyer with whatever you’re doing.
Fred Benenson: Don’t let the lawyers tell you no – there are alternatives, such as Creative Commons, for finding content out there.
Melinda Lee: For you creatives, before you turn on the cameras, think about the rights issues and what you want to do with the end product at the end of the day.
Ian DiBernardo: You should focus on both offensive, how do I protect my creatives, and defensive, how do I avoid stepping on somebody else’s rights.
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