ST. PAUL NEIGHBORHOOD NETWORK (SPNN) ST. PAUL, MINNESOTA JANUARY 13, 2005 COPYRIGHT LEGAL ISSUES Stephen J. Guzzetta Tracy J. Schaefer Bradley & Guzzetta, LLC Saint Paul, Minnesota (651) January 13, 2005

2 COPYRIGHT Copyright protects “original works of authorship fixed in any tangible medium of expression... From which they can be perceived, reproduced, or otherwise communicated...” Exist in physical form Independently created by the author Result of creative effort (e.g., more than alphabetical listing of names) – originality is key Works of authorship include (by way of example): Literary works and pictorial works Musical works and any accompanying words Dramatic works, including any accompanying music Architecture Motion pictures and other audiovisual works Sound recordings Underlying Ideas or Facts and Not Protected

3 COPYRIGHT Federal Government Works, Material in Public Domain, Facts, and Common Ideas/Concepts (e.g., plots, themes, etc.) Not Protected Copyright interests of PEG programming producers and PEG facility managers Authors of copyrighted works (e.g., video programs) Users of copyrighted materials (e.g., background music) Copyright owners have the exclusive right to: Reproduce the copyrighted work Prepare derivative works Distribute copies of the copyrighted work to the public by sale or other transfer or ownership, or by rental, lease or lending Perform the copyrighted work publicly Display the work publicly

4 COPYRIGHT Exemptions to copyright protection include: Fair Use Certain General Rights of Performance Payment of a Royalty Compulsory License

5 COPYRIGHT Fair Use “Fair Use” of a copyrighted work is not an infringement of copyright Examples of “Fair Use” include use for the purpose of: Criticism (e.g., quoting in a review) Comment (e.g., using excerpt for purpose of analysis) News Reporting (e.g., brief quotes in a news article) Research and Scholarship (e.g., using a short quote in a scholarly article) Transformation of a copyrighted work(e.g., a parody) can be fair use Factors to be considered in determining whether a particular use is a “fair use:” The purpose and character of the use, including whether it is of a commercial nature or for a non-profit educational purpose; The nature of the copyrighted work (e.g., is it published or not); The amount and substantiality of the portion used; and The effect of the use on the potential market for or value of the copyrighted material

6 COPYRIGHT General Rights of Public Performance Like “fair use,” not an infringement of copyright Examples: Face-to-face teaching activities Instructional broadcasting or transmissions for specific classwork of nonprofit educational institutions or government training programs (NOT broadcasts directed to the public at large) Religious services Live performances without commercial advantage to anyone Mere reception of broadcasts in a public place Performance of a nondramatic literary or musical work as part of a social function by a nonprofit veterans or fraternal organization, provided the performance is not open to the general public and the proceeds are donated to charity

7 FAIR USE STRATEGIES Avoid merely copying someone else’s work verbatim – “transform” the work if you can (i.e., make it something new) Avoid personal financial gain from the use, unless there is a clear public benefit Do not impair the market for or value of the copyrighted work (e.g., don’t take money out of the author’s pocket) Use as little copyrighted material as possible or necessary (i.e., quantity often counts against you) Use common sense

8 FAIR USE STRATEGIES Consider the importance of the copyrighted material you are using to the entire work Giving the author credit will NOT avoid copyright infringement if the use falls outside the “fair use” exemption

9 COPYRIGHT Work for Hire Under work made for hire the employer or hirer will own the copyright in the work, automatically Courts consider manner of payment, amount of control, payment of taxes, structure of payments, who provided the materials, relationship of parties, number of meetings, type and quality of work, the nature of work…

10 COPYRIGHT Work for Hire continued… Volunteers SPNN would not have copyright authority of work completed by volunteers. Policy could be established to have volunteers agree that SPNN has rights to production, if SPNN so wished Employees Paid by SPNN, thus no copyright control by employee Contractors Before signing an agreement or making payment to an outside contractor, be sure to include language that all rights and ownership of the production are that of SPNN Always easier and better to handle copyright issues with contractor upfront

11 COPYRIGHT Website Design/Layout Treat SPNN’s website no differently than other medias i.e. video production, magazines, etc. If you know of an item that you would like to use that was created by someone else and whose copyright has not expired, then the most prudent course of action is to license the right to use that item from the copyright owner For example, if I wanted to insert a graphic of Darth Vader on the SPNN Web page, I would have to contact Lucasfilms and obtain a license to use the Darth Vadar image. The license would spell out how I could use the image, how much I would have to pay to use the image, and any other conditions and restrictions deemed relevant

12 COPYRIGHT Website Links A website link is a URL (address) Treated no differently than a street address that is not copyrightable Website Link Lists Unlike just one website link, copying an entire website link list like the SPNN “LINKS BUTTON” is probably a copyright violation However, you can take several links from a list and not violate copyright law

13 COPYRIGHT SPNN Website Can you link to anyone you want? YES, according to the “doctrine of implied public access of the web” By linking to others SPNN has given “implied permission” for others to link to SPNN Monitoring SPNN Website for Bad Association Search the Web for references to SPNN’s website Examine where your incoming traffic is linking in from Post a disclaimer asking other sites to get permission before linking to SPNN’s website. Insufficient legal precedent in this area Use Netiquette: LINKS TO OTHER WEBSITES WILL BE REMOVED IF THE LINKEE OBJECTS

14 GENERAL COPYRIGHT STRATEGIES Ensure program producers agree that they have gotten all necessary authorizations as a condition of using access facilities (some risk of prior restraint) Require actual copies of authorizations, consents, licenses, etc. Regularly inform producers of their rights and responsibilities under copyright law Require indemnification from program producers As needed, connect producers with agencies that grant licenses for use of copyrighted works (e.g., ASCAP and BMI for music) Ask your cable operator about any blanket license it has to see if the license would cover PEG channels

CONCLUSION Stephen J. Guzzetta Tracy J. Schaefer Bradley & Guzzetta, LLC Saint Paul, Minnesota