Legal Myth Busting – Film, Music and Graphic Novels
If you are a creative professional who creates artistic content for a living, then you know that it can be hard to get appropriate business and legal advice, in a format that is both easy to understand and economical. Fortunately, you can turn to your creative community for support and be pointed to resources or media that can help you find the answers you’re looking for. However, not all solutions and suggestions offered are actually true or effective. If there’s anything worse than bad advice, it’s wrong advice and so here are a few myths and mistakes, demystified:
A lot has been said about the importance of getting your work registered and setting aside time and resources to ensure that the registration process goes smoothly. Unfortunately, mailing or couriering yourself a copy of your work is not a registration method and is simply a myth that has been perpetuated over the years. By mailing yourself a copy, you might be reaffirming your status as the creator of the work, but this does not amount to formal registration. Thanks to certain international obligations and treaties, countries like India recognise automatic registration that implies you have a copyright once you have finished creating an original work that is fixed in some kind of medium. However, once again this is not the same as formal registration. Every country has a copyright office which lays down the procedure for copyright registration – in India, you can have a better idea of how to do this by going to copyright.gov.in.
Before filming or recording a person or their interview, you necessarily require their written consent – something that is covered in a release form. The release form, however, must explicitly include what content you will be using and this does not include other creative content made by the person you are interviewing. So in other words, if you would like to incorporate the music or choreography created by the person you are interviewing, you need to create a separate piece of documentation that explicitly states that the person has authorised you or given you their consent to use other creative content. This implies that the person has provided you with a licensing arrangement whereby you can now use their music or choreography. This is very important, and so it’s always good to have some foresight when approaching persons for their interviews – provide them with a release as well as any other relevant documentation when you meet them, so that you don’t have to run around later looking or contacting them.
(Read more about the legalities of working with documentaries here.)
The time restriction rule went out the window a long time ago thanks to the litigation of labels like Bridgeport Music. Now the general understanding is that any unauthorised sampling is illegal. So, even if you’re sampling or incorporating a sound recording for just a few seconds, it is important to take the song owner’s permission. To be honest, you might be able to get away with sampling as long as an ordinary listener is unable to recognise where you picked your sample from – however this is problematic because sampling in musical cultures, is a form of referencing, and the significance of a sample lies in whether listeners can associate it with its original context.
There are two things to remember here –
1. Characters are copyrightable.
2. The right to freedom of speech and expression is not absolute.
A character is capable of being copyrighted, regardless of whether it is one defined by a literary description or one that is accompanied by a visual form. The more well defined the character, the better are its chances of being considered copyrightable. Since a character is copyrightable, the unauthorised usage of it by another person in their text or work can amount to copying or infringement. Although certain defences or exceptions like fair use or fair dealing may be used to justify some references, the understanding is that you get the permission of the original copyright holder of the character before actually incorporating it in your own work. The right to free speech and expression is a constitutional right that is guaranteed to the citizens of a country. However, like all other fundamental rights, it comes with a set of restrictions that need to be understood and adhered to. So in other words, free speech and expression cannot be used as a blanket excuse.
This might be one of the most interesting and unfortunate myths doing the rounds. There are a number of artists who upload covers of popular songs and there are many YouTubers and filmmakers alike who use popular songs as a part of their background score – all this is justified on the grounds that it has been merely uploaded to YouTube. Thanks to Digital Millenium Copyright Act (DMCA) notices, an increasing number of content creators are becoming aware of the limitations associated with using copyrighted musical content without permission regardless of the medium and the commercial nature of the work. It is absolutely necessary to obtain the permission of the song’s copyright holders by way of a synchronization license or any other licensing arrangement.
Hopefully we’re all a bit wiser now with respect to some of these strange myths and misgivings regarding the creative industries. If you can add to this list, then please do so by leaving us a comment below.