Our first instinct is to pull images and music from the internet. Everything is right there for the taking and many who create content think about using what’s accessible and seems available. Borrowing can quickly solve a variety of editorial problems.

But not all material on the internet is free to use and it may be illegal to just grab and go.

Copyright is a law that protects creators of works that include text, books, photos, graphics, artwork, music, and anything that has a copyright symbol next to it.

How do you get a copyright?

The federal Office of Copyright says:

“The copyright notice generally consists of the symbol or word “copyright (or copr.),” the name of the copyright owner, and the year of first publication, e.g., ©2008 John Doe. While use of a copyright notice was once required as a condition of copyright protection, it is now optional. Use of the notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.

If there is no copyright notice, does that mean there is no copyright?

“The absence of a copyright notice does not mean that there is no copyright. Copyright protection exists automatically from the moment of creation in a tangible fixed form, which is generally considered to include electronic form. A notice is not required to protect copyright.”

How long does it last?

Copyright extends for the life of the author plus 70 years. There are some efforts underway in Washington to change the copyright law and reduce the number of years a creator can hold on to copyright.

But the bottom line is that the law, and basic fairness, require us to honor copyright.

That means that we can’t borrow material freely from the internet unless the creator clearly states that you can use the work.

If you want to register a work follow this link and fill out a form.

Fee for Use

If you want to use an image or music and the creator does not indicate that you may borrow it, there’s likely a fee to use it.

Copyright and Creative Commons

On the other hand, the good news is that some content creators are eager to have their work used and distributed even if they don’t get paid.

Most, however, want credit.

The Creative Commons License was established in 2002 to make a wide variety of content available from willing content creators who want to get their work seen and heard, but may also want credit. The Creative Commons 4.0 license requires you to attribute the photo, or piece of music or artwork. You must link to the site where the image came from and you must give credit on your site to the creator.

Flikr, SnapFish, 500px , postimage, and other sites that will probably start up by the time you read this, offer photo sharing of one kind or another.

Many of the photos posted on these sharing sites ask for Creative Commons attribution. They make their work available under a Creative Commons License.

In most cases, even with Creative Commons, the creator wants credit. You can freely use these images, but you must credit the creator either on the image, or somewhere in the printed material or the text on the website or the brochure. There is often a request for you to link to the creators site, or Wikimedia where the image may have been posted.

You can find images with Creative Commons licenses indicate via Google and Bing search engines.

When you use images on Google there is a tab for settings.

On Bing there is a tab for License.

On Google

Click on Advanced Search and it will take you to this page:

Choose: “free to use or share, even commercially”

If you plan to modify the image or graphic make sure that you choose: “free to use, share or modify, even commercially.”

You’ll then get a range of photos that you can use for free. But you must if it is an attribution license, you must give credit to the creator.

If you use Bing once you choose the subject that you are searching, images will come up and the list of headings in the bar at the top of the images will include the word: License.

Always choose a commercial license and if you plan to modify make sure that you choose the license that allows you to modify the image.

You can also find images through Wikimedia or Wikipedia

Some people will allow you to use the images without attributions. But be very careful. To find the license you may have to click through several layers to check to see the requirement.

Pixabay features a wide range of photos posted by photographers. They are free, but you can leave a donation for the artist. They ask for coffee money.

Pho

Photo by Gellinger, Courtesy Pixabay, Creative Commons License

Public Domain

On Wikipedia, and elsewhere, you may find works labeled Public Domain. The federal Office of Copyright defines public domain this way:

“The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.”

U.S. Government agencies maintain photo and video archives and most of the work is in the public domain.

This Department of Defense photo for example is free for you to use. It’s always a good idea to give credit to the photographer and the agency.

Photo By: Petty Officer 2nd Class Nicholas Burgains

U.S. Marines, Senor Beach, Oman. U.S. Marine Corps photo by Gunnery Sgt. Robert B. Brown Jr.

The Library of Congress has photos and videos in the Public Domain.

Hot Lips at the Apollo, 1946. William P. Gottlieb/Ira and Leonore S. Gershwin Fund Collection, Music Division, Library of Congress.

FEMA, the Federal Emergency Management Agency offers Public Domain photos and video of disaster areas when the agency responds.

Hurricane Maria response, Photo courtesy FEMA

Aftermath of Hurricane Sandy. Photo courtesy FEMA.

VIDEO

Vimeo offers Public Domain videos. You can them here: https://vimeo.com/channels/publicdomain

Government agencies also have video that you can use for free.

Video Courtesy of the U.S. Fish and Wildlife Service

Video Courtesy U.S. Armed Services

Video Courtesy FEMA

Pixabay Offers videos on a many subjects and you can use them for free.

https://pixabay.com/videos/boy-jump-dance-man-person-dancing-21827/

Videvo.net offers free stock footage. But the footage is likely to have attribution requirements and may limit the way you can use it. It may also require you to pay a fee.

Archive.org features videos that creators will let you use. Make sure to check the license to see if attribution is required.

https://archive.org/details/NycTrafficTimeLapse/NycTrafficWmv.wmv

Moving Image Archive hosts videos you can use. Again, make sure to check the license.

CreativeCommons has a site where you check for video.

Music

Popular music generally requires the payment of royalties to the artists, composers, arrangers, producers and anyone else who had something to do with the production of those works.

Licensed Music and Music for a Fee

ASCAP and BMI provide licensing for music and it is possible to purchase the rights, or a license, to use something that fits the creative bill.

But in most cases, the cost is prohibitive unless you have a blanket license to use a certain amount of music.

If you use music in a video that you post on YouTube and the creator has not authorized the use, it is likely that YouTube will challenge your right to use it and it may block your video.

However, there are new sites cropping up all of the time and there is a wide range of choices for music selections.

Stock music is available for a fee and there a many sites that offer this service including:

Unroyalty YouTube

http://www.stockmusic.net

http://www.freestockmusic.com

http://www.premiumbeat.com/stock-music

http://www.pond5.com/music/1/*.html

http://us.audionetwork.com

http://www.gettyimages.com/music

Royalty Free Music

YouTube’s audio library and has a range of music that is available for free

http://www.youtube.com/audiolibrary

There are many sites that also offer free music. There is generally a stipulation that requires that you honor the Creative Commons License and credit the creators.

ccMixter

Incompetech

SoundCloud

http://www.purple-planet.com

Again, by the time you read this there may be many new sites.

Fair Use in News and Reviews

From the American Bar Association

Vol. 28 No. 6

By Pierre Vudrag

Pierre Vudrag practices media and sports law in Southern California.

Fair use is a doctrine that is used to encourage criticism and commentary of copyrighted works. It is based on the concept that one should be free to use portions of copyrighted materials without asking permission from the copyright owner. It is an equitable principle that is frequently used as a defense by those sued for copyright infringement.

Determining fair use. To get a general sense of how fair use is applied, one must understand a set of fair use factors outlined in the lineage of case law dealing with copyright infringement. These factors are weighed in each case to determine whether a use qualifies as a fair use, often through varying court decisions with an expansive or restrictive meaning that could be open to interpretation. If a use is deemed not to be a fair use, then one would essentially be infringing on the rights of the copyright owner and may be liable for damages. Unfortunately, even if you strictly follow these factors and the copyright owner disagrees with your fair use interpretation, your dispute may have to be resolved through litigation or the payment of licensing fees.

Fair use in the general sense, with no hard-and-fast rules, is the use of copyrighted material without permission from the appropriate copyright owner for a limited and, as the courts deem, “transformative” purpose so as to comment on, criticize, or parody such copyrighted work. Specifically, the Supreme Court emphasized that the transformative nature of the use determines whether the material has been used to assist in the creation of something new, rather than merely copied verbatim into another work. In other words, one must ask: (1) has the material taken from the original work been transformed by adding new expression or meaning? and (2) was value added to the original, thereby creating new information, or new aesthetics, or new insights and understandings?

Generally, two categories are used when making a fair use—commentary or parody. Typically, when focusing on news and editorial reviews, one would look to the first category, commentary. When commenting on or critiquing a copyrighted work, fair use principles would allow one to reproduce some of the work to accomplish one’s intent.

Courts have generally used four factors in resolving fair use disputes, which are laid out in Section 107 of the Copyright Act: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use on the potential market.

The purpose and character of the use. The “purpose and character” factor is the determining factor in many fair use decisions, as it allows the court to take a subjective look into the potentially infringing party’s intentions behind the use. Particularly in cases involving news reports, footage, reviews, and sports highlights, this factor typically favors the party claiming fair use for various reasons.

The first thing that we need to know is that copyright protection does not protect factual information conveyed in the copyrighted work, meaning that publicizing the scores of a sporting event or other factual information such as injuries, retirement, and so forth is considered fair use and does not constitute copyright infringement. What helps to strengthen a fair use argument in a case not involving the use of mere factual information is the use of the copyrighted material for the purpose of legitimate news commentary. For example, when using a clip or photograph to report the results of a sporting event or other factual information, courts have regarded the use of copyrighted material as fair use when the use is (1) brief quotations only; (2) presented in a news report; and (3) presented in a newsreel or broadcast of a work located in the scene of an event being reported.

Nature of the copyrighted work—published or unpublished. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression. Therefore, you have a stronger argument in favor of fair use if the material copied is from a published work rather than an unpublished work.

Amount and substantiality of the portion taken. A general misunderstanding of fair use application has led to the “seven-second rule,” which many clearance representatives follow. A brief use of footage may not be deemed fair use unless all fair use factors can be applied. But the amount of footage used is a key factor in determining if a use is not fair, as highlighted in a key 1977 court case. The Second Circuit found that a CBS affiliate’s use of a one-minute-and-15-second clip of a 72-minute Charlie Chaplin film was not a fair use when used in a news report about Chaplin’s death. The court deemed that the portions taken were “substantial” and part of the “heart” of the film. The court’s analysis may have been different if CBS had used only a limited portion of the footage to simply enhance its news commentary on Chaplin’s death. The Second Circuit’s ruling is a clear indication that this type of use will never be considered fair use.

Effect of the use on the potential market. One of the most important fair use factors is whether the use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. If a copyright owner feels that he or she has been deprived of income, this is likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.

Does fair use apply? Although the four-factor test of Copyright Act Section 107 provides a firm foundation for understanding which uses are fair uses, courts have infamously favored different factors in different cases, resulting in very unpredictable outcomes. There is a sizable gray area in which fair use may or may not apply.

So how does a news organization invoke fair use while falling within the permitted guidelines established by case law and without invoking potential litigation? The simplest way is to get permission from the copyright holder, but this is not always possible given the fluidity and immediacy of news reporting. To invoke fair use when using noncleared third-party clips, the news organization should follow these guidelines: (1) make sure the use is for a legitimate news report; (2) only use the clip when reporting on a fairly recent news event (usually 24 to 48 hours); (3) make sure that the use is a brief use of the clip to underscore the reporting of the news; (4) make sure there is actual commentary or criticism by a news reporter or anchor of the action appearing in the clip (there has to be a “transformative use” of the copyrighted material); (5) if reporting on a sporting event, make sure the event has been concluded, meaning it may not be fair use if the game has not been completed; and (6) make sure the materials are used in a bona fide news program.

More Information about the Entertainment and Sports Industries Forum

This article is an abridged and edited version of one that originally appeared on page 1 of Entertainment and Sports Lawyer, Fall 2010 (28:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: www.americanbar.org/groups/entertainment_sports.html.

Periodicals: Entertainment and Sports Lawyer, a quarterly newsletter; Journal of International Media and Entertainment Law, a biannual journal.

CLE and Other Educational Programs: Forum Annual Meeting, October 13–15, 2011, New York, New York.

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