Copyright FAQ (Frequently Asked Questions) and Information
Disclaimer: This document is for general overview purposes only and is NOT to be construed as legal advice of any kind. It is the reader's sole responsibility to research, verify and/or consult with a legal professional regarding any of the subject matter contained herein.
What is a Copyright and how do I get one?
How are copyrights, patents and trademarks different?
What kinds of things can be copyrighted?
Why have copyrights?
What constitutes an "original" creation?
If I create an original video, how can I prove copyright?
When I pay for copyrighted material, do I own it?
Can I use video or music from a DVD/CD that I own?
I paid for a commercial use license. Can I re-sell the footage?
What about public domain material?
What does "royalty-free" mean?
Can I avoid Copyright issues with "Fair Use"?
What is a "Copyright Claim" on YouTube?
Who enforces copyright laws - Copyright Cops?
What is a Copyright and how do I get one?
A Copyright is essentially the ownership of an original object, and the rights to sell/license/distribute copies of it. When you create something new and original, a Copyright for that new thing is automatically created. You do not need to file any paperwork or pay any fees to get a Copyright for something original that you made yourself. This is your right under United States law, and the laws of many other countries, too.
How are copyrights, patents, and trademarks different?
Copyrights, patents, and trademarks are similar in that they all protect certain rights of the originator/creator of something. The main difference is the kind of something which is being protected. A patent is designed to protect an original idea, process or specialized way of creating something. A copyright is designed to protect the actual creation. Trademarks protect a brand name, logo or other icon which represents the quality reputation of a company, product or method. For example, one could patent a new and unique type of musical instrument or manufacturing process for it so that no one else could manufacture that kind of instrument in that way without the patent holders license/permission. The company's trademark could be applied to the instrument and advertising to increase the value and desirablity of the instrument based on the established quality of the manufacturer. Finally, that instrument could be used to create an original piece of music which would be protected by copyright so that no one could make or sell copies of it without the musician's license/permission. In short, the trademark protects a reputation, a patent protects the method of creation, and a copyright protects the creation itself. So far as audio and video creations are concerned, the copyright is going to be a creator's primary ally.
What kinds of things can be copyrighted?
Copyrights are generally associated with intellectual property such as audio/visual recordings, text/writings, and software, but can be applied to virtually anything that can be duplicated and distributed to others. Some examples of Copyrighted items include music, lyrics, books, text, stories, video/film, computer programs, charts and graphs, art, newspaper articles, etc. Most of these things can be easily copied and distributed using various types of media.
Why have copyrights?
In many cases, the creation of original works/objects require a substantial investment of the creator's time, talent, money, and other resources, and often results in debt that the creator needs/intends to recover. Additionally, many creators earn a living from the sale/use of their creations and rely on that income to survive, just as others do by investing their time, effort and abilities in 9-to-5 jobs. Copyrights allow creators to decide when and how they want their creations to be distributed, and provides them with the opportunity to benefit from their work in many ways. Without copyright protection, some or all of the earning potential of a given creation could be taken by others, preventing the creator from realizing the full potential income, credit and prestige of their hard work. Copyright protection also helps creators prevent their work from being used for malicious purposes and other uses contrary to the creator's intentions.
What constitutes an "original" creation?
The term "original" can be somewhat subjective, especially when anything man-made is included in your production. Just because you record something yourself doesn't make the content of your recording original. For example, filming a bird in a tree can generally be considered original, but filming a TV which is playing a movie or music video is not original because your recording contains a copy or derivative version of someone else's material. Using someone's original material, even if it's mixed-in with your original content or edited/ modified with special effects, video/text overlays, etc. is still considered use of someone else's original material, if that material is at all recongizable. Some man-made landmarks (such as the Hollywood sign) are considered the property of others, and use of their image - even if you physically went there and filmed it yourself, can be subject to copyright law.
If I create an original video, how can I prove copyright?
Even though you automatically own the copyright to anything original that you create, proving that you are the original creator and copyright owner could be necessary if someone else attempted to claim ownership of your material. Although these situations are fairly rare, copyright ownership can be asserted in a number of ways. Filing form PA (Performing Arts) and a copy of your recording/material with the Library of Congress is one of the best ways to lock-in fact of ownership at the time of filing, although there is a small fee for this, and it can take several months for the process to complete. Publishing your work on a major media outlet (such as YouTube) is another good (and free) way to lock in the fact that you had posession of the recording first. Showing that the recording was made on equipment that you own (i.e. special lenses or other unique features of the recording equipment present in the recording) can help, as well as being in posession of additional/similar versions made at the same time, of the same subject, and on the same recording equipment. Releasing only cropped, lower resolution or slightly shorter versions of longer recordings can also help provide proof that you are the originator, since any competing footage presented as proof by others would be less complete than your original. Watermarking/stamping your logo or other identifying information within the recording itself can make clean, original-looking copies difficult to reproduce - especially if the identification is stealthfully applied so that it cannot be easily detected, covered or removed.
When I pay for copyrighted material, do I own it?
In most cases when you "buy" copyrighted material, you're actually paying for a usage license (permission) to USE the material rather than buying ownership of the material itself. Most usage licenses grant you permission to use material for your own personal enjoyment, but may also allow you to use the material for money-making activities as well as incorporating the material into a project or production for commercial distribution and/or advertising. When you buy the right to incorporate licensed material into your finished commercial production, you DO own the finished production, inclusive of the licensed material, as if it were a new and original entity. However, recipients to which you distribute your production will have limited rights to what they can do with the portion of your production that contains the licensed material, i.e. they can't clip or extract the licensed material for re-sale, sub-licensed or other commercial use/distribution, as this creates a conflict for the copyright owners of both the original material and the finished work. (see commercial use license below). The specific terms of the license will usually be stated in the license documentation you receive from the seller, although the verbiage can be complex and not so simple to understand.
Can I use video or music from a DVD/CD that I own?
When you "bought" the movie, music or other content on DVD, CD, video tape or other physical media, you really just bought the physical media along with a license to use its content. The content itself remains the property of the copyright owner. Most commercially-bought content on physical media is intended to be used/viewed for personal enjoyoment by the buyer, and in many cases a small audience (i.e. the buyer's family/friends). Like most licensed, copyrighted material, any commercial use, copying, or other distribution of the content (whether free or commercial) is strictly prohibited by federal copyright law. Like many copyrighted materials, you may be able to use small clips from it for commentary and other non-commercial purposes under the 1976 United States Copyright Act fair use provision, but keep in mind that big media companies have big expensive lawyers which aren't afraid to take legal action against unauthorized use of their material, so be sure your usage fits the fair use definition well, and avoid using excessive amounts.
I paid for a commercial use license. Can I re-sell the footage?
Generally, a commercial use license is intended to allow the purchaser to incorporate the licensed material into a larger project or production (known as a finished work), such as a movie, commercial, soundtrack, live performance, webcast, video background, etc. That finished work, in its complete form, becomes the licensee's "original work" and can be copyrighted, sold, performed and/or distributed for profit. Clips from the finished work which contain the licensed material can often be used/distributed as trailers or advertisements for the finished work under the same usage license. The licensed material can only be distributed while it is incorporated into the licensee's finished work/trailers/advertisements. It cannot be distributed in its original or modified form as stock footage, nor can it be extracted or otherwise copied from the finished production for subsequent sale, sub-licensing, or distribution/use in drivative works. This prevents competition with the copyright owner.
What about public domain material?
Most material produced by the US Government (except for classified materials, of course), including NASA footage, weather satellite images, armed forces promotional materal, etc. is generally considered public domain and can be freely used. Material which has been designated as public domain by its author is good to go, as are some old images, film clips, etc. However, just because something is old and/or commonly seen/heard doesn't guarantee it isn't copyrighted by someone. Many old movies, newsreels, images and music can still be copyrighted by the original authors, their estates, decendants, media companies, etc. Material which comes from an unknown source or has been copied many times along the way from its origin should not be assumed as public domain just because others have used and/or modified it. The excuse "All non-original content is in the public domain" as is sometimes used in YouTube copyright claim disputes is essentially meaningless, since all material originated somewhere. Even derivative copies or modified versions can contain recognizable original copyrighted material.
When it comes to music, copyrights can be even more tricky. Most music is copyrighted by someone in one way or another. Many classical music pieces are in the public domain - if you perform them yourself. However, an old classical piece (by Mozart For example) when recently performed by a modern musician can be freshly copyrighted by the performer, since each performance can be considered a unique version. The composition, lyrics, and any performances of the composition or lyrics can each be considered separate copyrighted items.
What does "royalty-free" mean?
A royalty is essentially an on-going payment structure for use of copyrighted material. For example, a famous actor would typically agree to star in a movie for an initial lump sum payment, plus a small percentage (the royalty) of each sale/showing of the movie. The terms/percentages are negotiated up front and put into contract. Under this classic scheme, the actor gets paid for his/her work on the film, plus a share (royalty) from any profit/revenue the movie makes. The better the movie sells, the more the actor (and any others who are entitled to a royalty) make. Royalties on any given work can be paid for many years (50 years and more is common), and many TV, movie and radio performances still employ this method of collecting revenue. The downside is that someone has to keep track of all the performances and resulting revenue, and then calculate/collect/distribute the agreed-upon royalties. The royalty method is worth the administrative effort when only a few actors or production companies provide the bulk of the work, and most of the proceeds are generated at only a few large venues.
In more recent times, production companies buy many bits and pieces (perhaps only a few seconds of material each) from a wide variety of providers (i.e. stock footage houses) rather than hiring camera crews to go film every little shot. This can save them a ton of money, but also makes paying royalties to each provider unrealistic. Additionally, massive Internet distribution via numerous outlets make tracking distribution and collecting proceeds a logistical nightmare. Enter the "royalty-free" licensing model. Under this arrangement, the production company buys permission to use the licensed material in their production from the copyright owner, who receives a small, one-time fee with no ongoing royalty payment (thus making it "free from royalties"). Royalty-free licensing is a great deal for producers since they pay only a one-time license fee for using the material even if they make a huge profit on the production which contains it. Royalty-free licensing can be time-limited and exlusive, but is generally granted to the licensee "in-perpetuity" (never expires) and is usually non-exclusive, so that the footage can also be concurrently licensed to others at any time.
Can I avoid Copyright issues with "Fair Use"?
According to the 1976 United States Copyright Act, many copyrighted works can be used without the permission of, or payment to the copyright owner under certain conditions. This is known as "fair use". This provision basically says that you have the right to reference (and potentially display/use parts of) copyrighted material in order to deliver commentary, critique, and other actions specifically relevant to the material, which is essentially exercising your right to free speech. The provision itself is somewhat ambiguous, and can be interpreted in many ways depending upon one's intent and point of view. Any unauthorized commercial use of copyrighted material can be (and generally is) seen as copyright infringement. Defamatory, negative, and highly prolific use which interferes with the copyright owner's ability to realize all the benefit from the material can also be seen as damaging to the copyright owner. In cases where the copyright owner claims and can prove damages, the court or other legal entity can (and usually does) side with the copyright owner, and can award monetary damages, levy punitive fines and sometimes (such as in serious or commercial piracy cases) jail time against the infringing party. So, "fair use" sounds like a good cover but if your use hurts the copyright owner's rights in any way you could still be liable for the damages, fair use or not.
Even if you are legally compliant and non-damaging in your use of copyrighted material under the fair use provision, and it appears that the copyright owner has no reason to charge you a fee or block you from using it, the copyright owner still has the right claim authorship identification under copyright law. (See "Copyright Claim" below)
What is a "Copyright Claim" on YouTube?
In an effort to appease legal demands and help protect copyright owners material from being exploited, YouTube/Google developed an automated "digital fingerprinting" system to find and identify copyrighted material in all user uploads. When copyrighted materal is found in an upload, a "Copyright Claim" is applied to that upload on behalf of the copyright owner. The claim itself is essentially harmless and does not grant or deny permission to use the material. It simply says that a copyright owner's material was identified in the upload. Identification is the first step in YouTube's Copyright Management System ("CMS") and supports a provision in the 1976 United States Copyright Act which grants copyright owners the right to Authorship identification of their copyrighted material. Once the claim is applied, the copyright owner is notified so that he/she can evaluate the use of their material and decide if it hurts their rights under copyright law in any way. (see Why Copyright above) Some copyright owners have chosen to limit viewing of uploads containing their material to certain regions, or even block them altogether. Others have chosen to join the growing community of copyright owners who allow the free use of their material, and benefit from YouTube's revenue sharing partner program.
YouTube's copyright claim system allows uploaders to file a claim dispute if a copyright claim was erroneously applied to their upload, but such disputes are only valid if the upload does NOT contain any of the copyrighted material being claimed. CMS copyright claim mistakes are fairly rare. Filing a claim dispute when the copyrighted material does indeed exist in the upload, even if the material is heavily modified with visual effects, cropping, etc. can result in video take downs and strikes against a user account/channel. The best practice is to avoid filing claim disputes altogether and contact the copyright owner instead, if there are any errors, questions or concerns about copyright claims applied to your upload.
Who enforces copyright laws - Copyright Cops?
Copyright violations are federal offenses which carry severe penalties including big fines and jail time, but unfortunately victims can't just call the copyright cops when someone steals their stuff. In most cases, the copyright owner must do the footwork, gather all the necessary proof and data, then take legal action using lawyers and the court system. Copyright problems can be settled out of court directly between the parties involved, in court by a judge, or by arbitration. Settlements can involve court-issued cease and desist orders, recovery of monetary damages, legal costs, and even criminal punishment.
When a large amount of copyrighted material turns up on a big venue such as YouTube, lawsuits by movie, music, and other copyright-heavy industries can legally force the venue to police itself, making it a sort of copyright cop, at least on its own venue. While YouTube doesn't perform any legal actions, they HAVE come up with the "CMS" (Content Management System) and other facilities which find copyrighted material embedded in user uploads, and allow copyright owners to decide whether to allow or block its playback. The clever and business-savvy minds at YouTube have also come up with a partner program which allows copyright owners to benefit from use of their copyrighted material via shared advertising revenue. This excellent business model turns what would otherwise be crime into a win-win-win scenario where video uploaders can incorporate desirable copyrighted material into their videos; copyright owners can realize an income stream from such use; and the venue (YouTube) can sell advertising which keeps their business alive and profitable. Even big industry copyright owners have seen the light of this new age in digital distribution, and have begun embracing the benefits of such a system instead of filing lawsuits.
