13.3 Legal Considerations: Copyright, Licensing, and Fair Use in Video Art

Video artists must navigate complex legal waters when creating and sharing their work. Copyright laws protect original creations, granting creators exclusive rights to use and distribute their art. Understanding these laws is crucial for artists to avoid infringement and protect their own work.

Licensing and fair use offer ways for artists to legally incorporate others' work into their own. Knowing how to obtain proper licenses and when fair use applies can open up creative possibilities while respecting intellectual property rights. These legal considerations are essential for exhibiting and distributing video art responsibly.

Copyright Principles for Video Art

Copyright Basics

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• Copyright is a form of intellectual property protection that grants the creator of an original work exclusive rights to its use and distribution for a limited time period
• Copyright protection is automatic as soon as a work is created and fixed in a tangible form (registration provides additional benefits but is not required for basic protection)
• Copyright owners have exclusive rights to reproduce the work, prepare derivative works, distribute copies, and perform or display the work publicly
• In the US, copyright generally lasts for the life of the author plus 70 years (after this, the work enters the public domain)

Copyright in Video Art

• Video art often incorporates many copyrightable elements including visuals, dialog, music, characters and more (each may have separate copyright considerations)
• International copyright treaties, such as the Berne Convention, provide protection for copyrighted works across national borders, but laws still vary by country
• When creating video art, it is important to consider the copyright status of all incorporated elements such as footage, images, music, text, etc.
• Collaborations in video art can lead to complex joint copyright situations (contracts should be used to clarify ownership)

Licensing for Video Art

Types of Licenses

• Licensing is when a copyright owner grants permission to another party to use their intellectual property, usually in exchange for a fee or royalties
• Exclusive licenses grant permission to a single party, while non-exclusive licenses allow multiple parties to use the work
• Creative Commons is a popular licensing system that allows creators to communicate which rights they reserve and which they waive for the benefit of other creators (rights can be reserved or waived for attribution, commercial use, derivative works, and more)
• Open source licenses, such as GNU GPL or MIT, are commonly used for sharing and collaborating on software code that may be incorporated into digital video artworks

Licensing in Video Production

• Master use licenses cover the use of an original recording of a musical composition in a new work
• Sync licenses grant the right to synchronize music with visual media (sync and master licenses are needed to use most commercial music in video art)
• Talent releases are required from all identifiable persons, not background extras, granting permission to use their likeness in the video work
• Location releases are needed when filming on private property or in some public spaces that have restrictions on commercial filming
• Materials such as archival footage, photographs, news clips, etc. may require additional research and clearance for use (this process should be started early and factored into the project budget)

Fair Use in Video Art

Fair Use Basics

• Fair use is a doctrine in US copyright law that allows for limited use of copyrighted material without permission from the rights holders
• Fair use is determined by four main factors: purpose of the use, nature of the copyrighted work, amount used in relation to the whole, and effect on the market value
• Purposes that can favor fair use include criticism, commentary, news reporting, teaching, scholarship and research (commercial use weighs against fair use)
• Use of factual works is more likely to be considered fair than use of highly creative works (use of unpublished material is less likely to be considered fair)

Fair Use in Practice

• Using small portions of a work is more likely fair use than large portions or the "heart" of the work (but even small amounts can be infringing in some cases)
• If the use could substitute for purchase of the original work or deprive the owner of income, it is less likely to be fair use
• Specific practices in video art, such as remixing, sampling, collage or found footage films, often rely on fair use when transforming the original work into something new
• Examples of fair use in video art could include using short film clips for a critique or review, capturing background footage or music incidentally, or sampling a news broadcast to comment on current events
• Fair use is an intentionally vague guideline, not a rule (claiming fair use will not prevent a lawsuit, it is a defense that must be proven in court)

Legal Strategies for Video Artists

Respecting Others' Copyrights

• Understand and respect the rights of other creators (obtain permission, give credit and provide compensation when using others' intellectual property)
• Research the copyright status and ownership of all materials you plan to incorporate (determine what licenses are needed and factor this into the project budget)
• Consider copyright at every stage of a project - conception, production, distribution, etc. (be prepared to make changes if permission cannot be obtained)
• When in doubt, consult an intellectual property lawyer for advice on specific situations (ignorance is not a defense against infringement)

Protecting Your Own Copyrights

• Register your own works with the US Copyright Office to receive maximum protection (promptly register any infringements)
• Use contracts to clarify copyright ownership between collaborators, clients, distributors and other parties involved in the video art production and distribution
• Explore alternatives to using copyrighted material such as public domain works, Creative Commons licensed material, or commissioning original music and art
• As an artist, understand your rights (you can control your work, negotiate for proper compensation, and take action against infringement)
• Watermarking, encryption, and other technological protections can help deter unauthorized copying of digital video art files
• Building a strong portfolio and fan base can help establish the value of your work and make it more difficult for others to pass off as their own