Laws, Protections and Pitfalls in the Age of Video Production – Part I

stack of books and statue with scales
Posted by Chris Straigis on October 20, 2017

♫Happy Birthday to you. Happy birthday to y… ♫

Wait, I almost forgot. I can’t sing that to you in this public and, for all intents and purposes, commercial blog post. You see, the tune “Happy Birthday to You” is under copyright protection with music publisher Warner/Chappell (or at least it was until a 2015 settlement, but we’ll not traverse that thicket today). This is one reason you’ll rarely see this song performed in television or movies. Warner has, in the past, charged up to $30K for its use, and pulls down about $2M a year in its licensing fees.

“Preposterous!”, you say, “How can someone own such a popular and ubiquitous song as Happy Birthday?” Well, again, for this post, these are weeds into which we shall not wander. But, suffice it to say, as Warner does, or did, own the rights to this song, they were free to monetize it however they saw fit.

And in the big picture, that’s actually a good thing.

Live Long and Prosper

Copyright is a form of Intellectual Property protection (IP). It’s a Federal law “…provided to authors of ‘original works of authorship’ from the time the works are created in a fixed form.” The spirit of this law is to, in effect, “encourage the development of culture, science and innovation, and to provide a financial benefit to copyright holders for their works.¹”

That’s a mouthful, so let’s breakdown three key points:

  1. First, it’s a Federal law. Whether you write a song in Nome, Alaska or Naples, Florida, it is bound under the same protections (there are also several International treaties but, again, weeds).
  2. Secondly, it’s a protection that takes place “automatically and immediately when the work is fixed in a tangible medium.” In other words, as soon as you write it, record it, or otherwise drag it out of your head and into some form, it’s protected, regardless of formal registration (though registration with the Library of Congress can be legally advantageous). Those protections also last a long time – modern copyright protection continues for 70 years after the death of the last owner of the copyright.
  3. And finally, the idea behind these protections is to spur creative innovation – to encourage you to create new and exciting stuff, and to cover your butt while you try to prosper from what you created.

Wild, Wild, West

Intellectual Property is just that – property. It belongs to the person who created it, or the person who legally owns it. And as much as you wouldn’t want someone just to wander into your house and help themselves to that last piece of pumpkin pie in the fridge, you don’t want someone taking a creation you own and using it for their own gain. If it weren’t for the aforementioned protections, it would be like the wild west again. From both a legal and an ethical standpoint, IP law (Copyright, Patent, Trademark) is a fundamental building block at that cross section of creative development and capitalism.

Now, it’s right about here that we can fall down the rabbit hole and raise the arguments of either price gouging and patent trolls, or, conversely, the decimation of compensation at the hands of devious distributers. But those are dense and thorny subjects, on both sides of the argument. It’s not a perfect system, just like many other areas of the Democratic experiment. But it’s better than nothing, and we’ll have to save that debate for another forum.

So, blow out those candles and grab some cake. Share a piece with your old pal Mildred Hill! And know that when it comes to IP protection in your creative projects, we’re here to help. In our Part II post, we take a deeper look at more media-focused protections like releases (yes, you should be getting them!), fair use and creative commons. Go ahead and give it a read!

¹https://www.rightsdirect.com/international-copyright-basics/

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Chris Straigis - Senior Manager, Video Services

Chris Straigis
Senior Manager, Video Services

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