When working with professionals, especially creative professionals, it’s important to clearly define what one can use for their sample of work.  The fifth and final part of a five part series, we look further into copyright law and some things to consider when you create content, license content for use, outsource content, and/or sub-contract anyone to perform work for your business. Take a look at the video below and the transcript of the video is below.

Christi: There are a lot of professionals that we work with, and it’s always just kind of been understood, or you know an understood agreement, that it’s OK if you take what I’ve filmed for you and you use it as a sample of work, as the kind of videos that your company produces. Or, if you wanted to use the video that I shot for you for some other purpose, it’s ok, because you paid me for it. And while that may not be what the law says, a lot of people in our industry kind of go along with that. And then there are those who don’t go along with that. So how do you work around that?

Tony Biller: So, you touched on three different areas. The law isn’t obnoxious. So, if we have no signed writing, and I pay you to do a video production for me, wel,l the law recognizes I have an implied license to use what you have created for the purposes that you know that I’ve hired you for; an implied license. Now, if you or I want to use that as, you know, on our website, showing examples of work that we do or for some other purpose, or let’s say you assign the copyright to me, but you want to show it on your website as examples of work, as part of your portfolio.

The law also recognizes what’s called the Fair Use. Yeah, you used this video without the owner’s permission. You copied it. So technically, that’s a copyright infringement. But we’re going to say, “no harm, no foul” and there’s factors that the courts look at. You know, “we’re using this for commercial purposes”. “We’re using this to make money”. Were you taking away the market value? That’s really the biggest factor for me, the rights holder. Were you doing this for purposes of commentary, for education and fair uses? Kind of grey… commentators like to talk about it a lot, it doesn’t get litigated as much as you would think, but that would be a classic example, I think, of a Fair Use argument.

I’m not taking anything away from you, I’m just trying to show the type of work we do at our studio. I think, that’s most likely a compelling, or at least a reasonable Fair Use argument, that even though I didn’t have an implied license to use that in my portfolio, there’s “no harm, no foul”. This is fair. But people can often disagree on what’s fair.

Tony: The last issue you brought up as, well, what if I want to use it apart from, in a commercial context, from the original implied license, and that can become much more problematic. Now, you’re right, in most areas of commerce these types of disputes don’t get litigated because the original author was paid for the work. And particularly., if there’s a custom of, it’s a like kind of usage. You just don’t hear many exceptions. Even if the subsequent use may have been outside of the implied license, these disputes do not come up often, but they do come up. Where you find they come up most often is where we have a longstanding relationship. And one person is contributing a lot of content without contributing to the ownership of the content, and then the receiver fires the author, and then the receiver turns around and wants to keep using the content. Well, so long as the nature of that content use doesn’t change, there’s no problem, and that’s still within the scope of the original implied license. But what happens is, you want to hire somebody else to replace me, the original author, that person comes in and he wants to modify that content, and one of the copyrights is a right to modify to make derivative works of your own content. So as soon as the new person comes in and starts changing the original content, copyright violation.

Now I’m scorned. This is a longstanding relationship, it may have been worth a lot of money, and then I sent you the cease and desist letters. You can’t modify my content. You can’t repurpose it. You can’t take those videos I did for your website and send them out to clients on any publication somewhere else, and you will see lawsuits there. But there usually has to be a lot of money involved and they’re the exception, and not the norm.

Christi: So, let’s say that I shoot video for another videographer, and that videographer…let’s say I’m downtown Raleigh, right? And it was for a particular client originally, and when he hired me he said I need you to shoot some footage of downtown Raleigh and use it for this marketing video.

Tony: “OK.”

Christi: I would not personally have a problem if he used that same footage for some other marketing commercial, or if he did something for downtown Raleigh, City of Raleigh, and they wanted to use some of my footage. I wouldn’t have a problem with that. But technically that could be an issue.

Tony: That’s actually an interesting hypothetical because I think more and more artists, and particularly photographers, have learned how the law works particularly in the digital age. On the one hand, the digital age has made it much easier to develop photographs and distribute them, and it certainly made it much easier to copy. I go on the Internet, right click, copy, and now I have a copy of your photo. And a lot of photographers, not professional photographers, are developing their primary revenue stream not through their services but through the licensing of their content. And your illustration, your example of downtown Raleigh is an interesting one because there is a photographer who specializes, a local photographer, who specializes in Raleigh skyline shots and he’s very aggressive. If his work shows up on somebody else’s website you’ll get a letter from his attorney demanding a fee. You know, a fairly hefty fee, for the unauthorized use of his photograph on your web site or otherwise. And what a lot of these photographers are doing, they’re marketing their works on the Internet, and they’re putting digital markers in their photographs. So, when I come along, the lazy website designer, and say “Oh a cool image from my client’s website,” right click, copy, paste on there. Well, I’ve just pasted the digital marker, one that shows up on a new website, the rights owner gets a notice from the software that says, “Hey those digital markers showed up on a new website.” He checks his logs and the license was not paid, calls his attorney, and then before you know it, you’re in a bad situation. So.

What used to be customary is swinging the other way particularly with commercial photography or any public use of photography.