Recap: Creative License

Posted on: Wednesday, February 20 2013

By Matt Sussman, Marketing and Development Associate

What do My Little Pony, Martin Luther King Jr. and Buffy the Vampire Slayer have in common? Quite a lot, actually, as was revealed last night at Creative License, a panel discussion on the ins-and-outs of copyrights and copywrongs for media makers.
Our distinguished guests included remix storyteller and Next Gen instructor Jonathan McIntosh and Brooke Wentz, founder of The Rights Workshop and BAVC Member Consultant on music licensing.  Kim Bender, BAVC's Director of Development moderated the lively discission, which covered everything from My Little Pony fan culture to the differences between incidental music used in documentary and in narrative film. 
Here are four takeaways every media creator should keep in mind when using someone else's material for their own project:
1.) Give yourself plenty of time
If you have a hard upload date for the YouTube premiere of your latest short "Give yourself a week padding," cautioned Wentz. "Youtube can be a nightmare since they're no humans involved."  
Youtube's algorithms have become so smart at detecting copyrighted material that videos can be flagged in a matter of days, if not hours. 
McIntosh experienced this first hand when his viral mash-up Buffy vs Edward was pulled down and then reposted, but only after extensive back-and-forth with YouTube (you can read about the entire exchange here).

2.) Make sure you have all your copyrights in line
Wentz explained that music involves two different copyrights: one for the publisher and one for the recording. Most filmmakers are seeking "a synchronization right" from the writer and the performer, which means that they want to put music in a thing that moves at the same time. "The only time you don't have to get a synch right is if the song is in public domain or if you cover it," added Wentz. Incidental use (say, a song playing over loudspeakers is recorded in footage of a protest) is also allowed as long as it's under 10 seconds. And you'll also need separate permission for trailer use.
McIntosh then brought up how copyright can work against the best interests of the artists its meant to protect by citing the infamous example of Eyes on the Prize, the landmark civil rights documentary series which has never been commercially available on DVD because it includes an unlicensed use of the song "Happy Birthday (To You)" (in a touching scene in which Martin Luther King Jr. is serenaded by his congregrants and supporters). The filmmakers weren't able to pay the $25,000.00 AOL/Time Warner demanded for use of the song.
"Martin Luther King is part of our culture." exclaimed McIntosh. "Time Warner is holding our culture hostage!"
3.) Fair use is a defense, not a license
Wentz made this point to encourage filmmakers to think preventitively about potential rights infringement to avoid further legal hassles or hefty payments down the road. "If it's a smaller artist whose music you want to use, approach them first," suggested Wentz. "Get everything in writing and pay up front"
4.) Know your options but follow your gut
As for the future of the seemingly endless battle between copyright and creativity, Wentz and McIntosh found flexible approaches such as Creative Commons encouraging even as media becomes increasingly monitored by corporate subcontractors and online bots. 
"None of this is tenable in the long run," said McIntosh. "The owners of media need to give up control. Culture is like a paint box; it's a palette. Once you've put something out in the world it's for everyone to use."
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