No one enjoys clearing rights. Checking that you may use content (whether on your Web site, in a publication, or for a performance) and won’t be sued over it takes time and effort. And, for e-commerce counsel clients, that means more money.
The rules governing content use have always been complex, long before the Internet. For instance, different types of intangible rights must be obtained, even for the same song or image — not only familiar rights such as those for text, images, photographs, music and trademarks. There are also hybrids when one type of right is embedded in another type, such as a photograph that includes a trademark. And additional rights must be obtained when images of individuals are included.
Even worse, owners of multiple rights often must be identified — and located, if they even can be found. For example, even if you want only to loop a few seconds of a single song, you need separate rights for the lyrics, the score, a particular performance and, today, different types of recordings of that performance, as well as master rights of any music publishers.
E-COMMERCE COMPLICATES THE REGULAR RULES
Yet, applying those rules to using content on an e-commerce Web site is even more difficult because “commercial speech” remains an evolving area of the law. The legal rules for online content constantly evolve as copyright and other intellectual property laws struggle to adjust “rights” to the stresses caused since digital technology redefined the many ways to “copy” content. For example, something as simple as cutting and pasting a desirable image found online may run afoul not only of the owner of the image, but also of the Web site operator who did obtain the content-usage rights properly and paid for a license to use the content, and of the artist who created it. In e-commerce, too, the particular look of content is critically important to brand image and market impression, and some vendors spend heavily to create extremely high-quality images so that their content can be properly displayed online — and therefore are prepared to spend heavily again to stop others from copying that image to sell similar or knockoff products.
But in trying to cut through all of this complexity, perhaps the legal rules of Web site design (at least in practice) become as simple as the schoolyard games that teach toddlers the importance of asking permission before acting, such as Mother May I? and Simon Says. In this changing technological and retailing landscape, Web designers must almost always be sure they have permission before using content, whether that content is software, images, art, graphics, music, good old-fashioned text or that which can safely be relied upon to include an exception to the permission requirement.
(Editor’s note: For a list of Web sites where one can request permission for a variety of content, see, “Links to Help e-Commerce Players Identify Rights Owners and Clear Rights.” The list is not comprehensive, because there are too many possible rights-owners from whom permission must be sought to cover all entities or people for every instance. A good basic resource on the mechanical process of clearing rights is “Getting Permission: How to License & Clear Copyrighted Materials Online and Off,” by Richard Stim, Esquire (Nolo Press, 2007).)
Of course, the same rules apply when publishing content offline, whether that content is to be published in a magazine, a book or video. But the convenience of right-clicking to copy and use electronic content seems to cause designers to forget that basic rule — and to forget to check the terms and conditions of the Web site from which the content was obtained, to be certain that use is permitted. For example, see the restrictions of Corbis.com, a well-known stock photo site, which clarify that it licenses images solely for a specific “End Use,” rather than for general publication or distribution. (Corbis.com, in contrast, also offers a “royalty free” license, but that applies only after payment of a flat fee, and then only for distribution to 10 or fewer users.) Obviously, these restrictions would not apply to content that the designer’s firm already owns, either because it created it, employed the person who created it under a contract that assigned the rights to the content, or acquired or licensed it from a third party.
IT’S NOT ALWAYS JUST BLACK AND WHITE
This “black and white” kindergarten rule to “ask first” has the advantage of simplicity — either you have the rights, or you don’t. If you don’t have the rights, you can’t use the content — maybe. As with anything involving the law, there are gray areas, exceptions to complicate matters, when advance permission from the rights owner is not required. How else would attorneys remain fully employed?
For example, asking for permission isn’t needed for content that the designer’s firm already owns, either because it created it or because the firm employed the person who created it as mentioned earlier, such as under a contract that assigned the firm the rights to the content as a “work made for hire.” Similarly, no additional permission is needed for content properly acquired or licensed from a third party. Other content may be used freely — and “for free” — such as content that has gone into the public domain. That situation occurs when prior rights have lapsed, or the creator chooses to make them available for others’ use. But be careful — just as the law in general doesn’t have a list of what you are permitted to do, there is no encyclopedia of public domain works.
OTHER MEANS TO AN END
“Fair use” of another’s content is also permitted, for “ copying of copyrighted material done for a limited and ‘transformative’ purpose such as to comment on, criticize or parody a copyrighted work.”
In the absence of black and white rules, often what is “fair” differs depending on whether one is the rights owner or the person trying to use them without paying for that privilege. Finally, if you can’t find anyone from whom to seek permission to use a work, even if you know the identity of that person, you have (and may use) a so-called “orphan work,” which is another common exception to the permission requirement. Of course, unlike real children without parents, a work is an orphan only until its creator shows up, demanding royalties and damages. And it can be particularly frustrating when a particular work is desired, and you know the author, but can’t locate the proper licensor — as recently occurred to me when I tried to assist a small nonprofit with locating the owner of an image widely available online at print sales sites, but could not find the owner of the licensing rights.
In all those cases, unfortunately, the black and white permission requirement takes on a “touch of gray” (or “grey,” the alternative spelling that those alternatives, The Grateful Dead, used in their song “A Touch of Grey“). Instead of asking for permission in advance, the designer must try to “get by” by using the content without permission, but also without the certainty (and legal defense) that publishers prefer to have when using content. The clarity of prior permission provides the defense against claims of infringement from the rights owner, and all the costs that inevitably come with such a lawsuit.
Still, there are many reasons one might rationally prefer a “gray” solution, even if such an option is riskier than a clear black and white one. The first is easy to understand: Free usage, with acceptable risk, costs less than paying for permission. Even before the current recession, avoiding a cost has always been a step to profitability, and this is the case especially now as publishers strive to develop an economic model for survival against the widespread availability of free content online.
Moreover, the risk of using rights without permission when the law concerning them is ambiguous, such as under the fair use and public domain exceptions, may be preferable to risking rejection from the rights owner by asking for permission — especially if the rights owner restricts use of its creations to avoid undesired association, whether to avoid damaging one’s commercial value, or on the basis of political or ideological preference. It may be a cliché, but there is tremendous folk wisdom (and canny legal advice) in the expression, “Never ask the rabbi if it’s kosher.”
DUE DILIGENCE IN CLEARING RIGHTS
In addition, even if someone is willing to pay for proper content-use rights, it is not always easy to secure them. Cheryl Kreiner, the expert legal assistant in my office responsible for the often mechanical tasks of clearing rights, warns that it can frequently take a long time just to find the right person to ask, much less pose the correct question.
“Make sure you have enough time to get the license; you can’t make this happen overnight, in a week or a month,” Kreiner says. “Too many people are involved, i.e., the songwriter(s), the artist, the record label, etc. Someone could be on vacation, on tour, or the responsibility for issuing the license could be delegated to someone new who doesn’t know about you or your request. Keep in constant contact with everyone from whom you requested a license. And last, but not least, always keep your clients continuously informed regarding your progress” (or the lack of it, because of the very real possibility that when so many parties are involved, something will inevitably go askew).
Also, a party seeking rights permission must know precisely what use to request — simply stating a request to use content in “e-commerce” leaves open many technical questions that will affect the type of rights that must be obtained, and the cost of obtaining those particular rights, not to mention the legal questions about the desired scope of use for the rights being sought. For example:
• Will music on a marketing Web site also be used in companion campaigns in traditional media or in other marketing channels?
• Will the site be available for a limited time only, or will it remain online indefinitely?
• Will it be promoted domestically, or to a broader, even worldwide, audience?
• Focusing on just the Web site, how long will it operate?
• Will it be linked to other sites where the content may be displayed?
• A specific, fully explained request will generate a response much more quickly than a broad, general one.
RIGHTS: A DEEP WELL
The multiplicity of rights for the same content also creates particular problems for designers creating content intended for use in multiple formats, as often occurs when creating a Web site that is part of a broader marketing campaign, and which is something in which e-commerce enterprises typically engage. As Kreiner notes, getting rights to music can involve the songwriter, the publisher, the performer, the record label and the owner of master rights to it all. Conceptual changes are easy to make for a single designer or marketer, but not if changing the Web site will require getting new or different rights; indeed, that will take more time than is available for the task. In fact, some previously obtained rights may no longer be accurate. Sometimes changes in the design will require people tasked with acquiring rights to seek entirely different rights, at potentially much different — and greater — cost. In the world of e-commerce, where changes can be published to the world seconds after they have been created, accommodating the timetables of the traditional licensing world will quickly clash with the work habits of those accustomed to immediate implementation — especially, as Kreiner warns, if the people involved in scheduling steps in the e-commerce development process did not build in any time to hunt for rights owners.
Of course, not having time to clear rights is a better problem to have than the consequences of not paying attention to rights in the first place. A colleague once told me about a Web site that was created and used the music of a well-known performer. Senior executives loved the demo version, and asked how the rights had been obtained within the project’s budget — which of course the designers had never realized they had to secure. At that point, well into the time and expense allotted for the project, the developer had little alternative to trying to secure those rights, regardless of the cost, or other limits on use, because the rest of the development had proceeded past the point where it could be redone.
Another rights-clearing challenge created by e-commerce is a modern variation on the “round peg into a square hole” problem. Frequently, those involved in clearing rights are not e-commerce attorneys, or even e-commerce site developers; instead, the personnel at the rights-owner or clearinghouse agency may be lower-level clerks seeking to pigeonhole each rights request into an established slot. While some aspects of e-commerce may well employ traditional methods, others taking advantage of the possibility for innovation made possible by Internet technologies may truly be creating “new slots.” In that case, the request may be priced too high, or just delayed while the clearinghouse tries to set the correct rate, and by doing so, holding back the whole project.
BETTER SAFE THAN OUT OF BUSINESS
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