Copyright Isn't Just for Photographers….

The web makes for an interesting place, and often I get emails from folks asking for suggestions and recommendations on how to best protect their images from being used without their permission (and let’s not mince words here – nobody wants to have their work stolen).  Often my response is a bit of this and that, suggesting to make images “web-safe” (i.e. low resolution so they can’t really be re-printed), and to limit the images you publish.  (The more you put out there, the more you have to monitor.)

Online resources like TinEye are becoming more common, and people often take extensive measures to protect their content, including watermarking both front and center, and placing a digital signature on the files that is not as easily stripped or removed (a popular method here is to use the services of Digimarc where the company will monitor usage for you).

The ultimate way that most photographers go though, is to utilize Flash as this really limits the accessibility of the image.  You can’t right-click and save, and it’s very hard to strip out without hosing things completely.  The biggest immediate downside is that Flash hasn’t historically worked well with SEO (Search Engine Optimization) so your site information will not be read by the various search engine crawlers like Google, Yahoo, and Bing!

The other downside to using Flash is that many of us fall victim to the impulse to incorporate music in our presentations.  However, when incorporating music, you must be careful to ensure that you are not infringing on someone else’s copyright.    I made the mistake of using a snippet of some music from a major label as an intro to the podcast a few times, thinking it was an innocent usage.  As it turns out, such usage is not innocent – it’s in violation of the owners’ copyright.  (This is why some podcasts are no longer available, or have been re-published with what is called “pod-safe” music. )

There is a lot of legal mumbo-jumbo out there about the usage of snippets or “sampling”, and getting into all the nitty -gritty would really close your eyes quickly!  If you want to learn more about the legalities, start here.  Suffice to say, my awareness of the technicalities come from personal experience, and for me, it has been a lesson learned in not only  how to protect my own work, but also about respecting the copyrights of other artists.

So, armed with this insight, when photographers come and ask about how to protect their images, and then share with me a Flash gallery with what is clearly copyright protected music, I always feel obliged to reply with a little note.  While I have made it a policy never to call anyone out publicly on this (that’s just not cool in my book), there’s a lot of copyright infringement going on out there by photographers! It’s usually the usage of music in Flash gallery presentations, and often is done innocently enough, but with not so innocent results that are possible.

You see, most artistic endeavors, whether photographic in nature or through other mediums like musical expression (or painting, pottery, writing, or pretty much any sort of creative expression), are all instantly protected by copyright on creation.  If the artist has registered their work with the Copyright Office (and most commercial artists have), they also have additional legal and fiscal remedies they can pursue against infringers for unauthorized usage.

The point here is that musical usage is just like image usage – it is a licensed activity.  So, unless you specifically are using music that is in the public domain (a.k.a. free for all to use -often called “pod-safe” music), it is more common to be restricted by licensing.  This is why the Recording Industry Association of America (RIAA) have endeavored to protect their clients licensing by preventing illegal usage of their music.

Also keep in mind that just because you own a single CD from an artist does not give you the right to re-publish that music.  You can listen to it, and you can even loan the CD to a friend.  But ripping a song off a CD and using it for a slideshow is not a great idea.  So, before you go and rip that CD from your favorite singer or band & convert to MP3 for inclusion in your Flash photo gallery – consider that you are using someone else’s content likely without their knowledge or consent.  This could spell trouble in a number of ways:

1.  Cease and Desist Notification

You may get one of those “Nasty Grams” saying you are using content illegally and must remove said content within 24 hours.

2.  DMCA Takedown Notification

Usually after 24 hours, they stop trying to contact you, and simply notify your Internet Service Provider.  At that point, your website will pretty much be shut down automatically as ISP’s do not want to be involved with the liability of a photographer who has used unauthorized music.  This is done by the infringed artist demonstrating to the ISP that one of their accounts is in violation of the Digital Millennium Copyright Act (DMCA for short), and are requesting that pursuant to the DMCA provisions, that the infringing site be “taken down”.  It’s often referred to as a DMCA take-down notice – and if your host ever sends you an email notice using these words, it’s not a good sign.  You likely won’t get sued, because the infringement has effectively stopped, but that is another option that infringed parties have available to them, so don’t be too sure.

3.  Legal Remedy

You could get sued!  One of the big reasons photographers (and all artists0 are encouraged to register their works with the Copyright Office, is that it affords much larger restitution from parties that deliberately use your work without permission.  Music is no different.  If the artist is someone big, like Madonna, Aerosmith, or Dave Matthews Band, their pockets are pretty deep and they have attornies who wont even flinch as they file lawsuits against people who use their work without permission.

4.  Fiscal Restitution

Now, not only is your site taken down, but you have a legal judgment against you, and you will not only have to pay for the illegal usage, but also all the injured parties court costs.  These lawyers aren’t cheap – usually charging hundreds of dollars per hour!

There are two terms that are bandied about when these discussions come up and it does require just a teensy bit of legal mumbo-jumbo, but rest assured- I want to keep the legal portion of this short and sweet and easy to understand, so bear with me for a short paragraph or two here.  The terms people quote when it comes to using music for slide shows or podcasts are Fair Use and “The Thirty Second Rule”.  Let’s take each separately:

Fair Use

People like to bandy this term about but before you do, keep in mind that the term of “fair use” is not a law – it is a doctrine that can be used and applied (or not) to define whether or not infringement exists.  There are no hard and fast rules here – it’s all subjective and is typically applied on a case-by-case basis, which means there are already legal proceedings at play.  Courts are now involved and looking at things like purpose and character, nature of the work, and much more.  To see a full discussion on the term “fair use” go to this page on Stanford’s website (yes, THAT Stanford!).

Thirty Second Rule

The “thirty second rule” is really more a claim of minimal usage.  (It’s called a “De Minimis Test”, where there is simply not enough of a recognizable portion of the protected work used to really be eligible for infringement.)  There are two court cases that both support and contradict the defense, specifically Sandoval v. New Line Cinema Corp and Ringgold v. Black Entertainment Television, Inc, respectively.  One case held that the usage was minimal and did not constitute infringement, while the second showed that the infringement (a poster shown in a movie for 27 seconds) was valid because it was recognizable, and even a casual observer would be able to “discern the  imagery and colorful style”.  Again, more details are available on the Stanford page here.

Clearly, both of these claims are really more urban myth than reality, and such reliance is not a good idea if your web presence, financial stability, and reputation are at stake.  Wouldn’t you agree?  Remember, just because someone plays a lawyer in a forum (or on a blog! 🙂  ) does not make them one in reality.  To that end, while I do have post graduate studies that focus specifically on legal issues, I am not a lawyer and do not pretend to be one.  But, I would say that my own understanding of legal issues is probably better than the average laymans! 🙂

Rather than hounding on the legal precedents though (many of your eyes have glassed over already, I can tell! 🙂  ), I’d suggest that we all use a pretty generic rule that seems to work no matter what the situation is.  For me it’s always been called The Golden Rule:

Do Unto Others as You Would Have Them Do Unto You!”

Think about it – if you are trying to protect your own copyright, why would you then use the works of others in your own presentation without permission?  Isn’t that just asking for trouble?  It seems rather presumptious – almost like the person is saying “The law applies to others who try to take my work, but not to me taking others work…that’s ok.”

The only other argument I’ve heard from some about using copyright protected work is that they are so small, what are the odds of a content creator coming after them.  The answer is “quite good”.  Don’t you remember the news a few years back when the RIAA went after infringement big time, and one of the infringers was a 12-year old girl?  They dug in, stuck to their guns, and the parents were liable.  The point here is that it can happen and it does happen…all the time!

So,  the question that most people ask me after I tell them about all this is: “What options are available?”  Answer:   Plenty!


1.  Podsafe Music

I’ve already referenced the “podsafe” option now a few times, but have only pointed you to the Wikipedia article that discusses some of the legalities of it.  There are podsafe resources out there where you can get often either free music or very low cost musical scores to use in your shows.

Here’s a list of just a few resources that I have used in the past myself to find material that is appropriate for what I am doing:

Keep in mind, some of these are completely free, and some you do have to pay for, but the pricing is very cost effective compared to licensing from major artists like the ones mentioned above.  For instance, Magnatude you can use even for as little as $15 (in the form of subscription membership).  Take each for a test drive until you find one that fits your presentation or podcast need accordingly!

2.  Record your own music

Another option would be to record your own music!  Many photographers I know are also musicians, and are perfectly capable of recording something cool and original, for their own show.  I also know folks who are friends with people who are musically inclined, and have collaborated on short works to use in things like slideshows and podcasts.  This route is actually super cool because often the artist will tailor the style of the music being recorded to the specific needs for the slideshow or presentation, making the entire body quite unique, original, and thus much more appealing to listening and viewing audiences.  It also can help both artists gain a little visibility!

3.  Use what you already have

Last, but not least, would be to use some of the snippets that come with certain platforms.  For instance, Garage Band on the Mac has sound bites that I have used in my podcast a lot!  Other programs out there like ProShow Gold, Camtasia, and even Adobe Soundbooth offer short snippets for sound bites, teasers, and jingles that you can blend and mix together to create something usable.  It may require a little more work here, but as the old saying goes – nothing good ever comes easy!

Getting down to it though, it’s ultimately a matter of respect for others work.  If you want to protect your images by using a slideshow in Flash or some other medium, make sure you respect musicians works just like you want your own work untainted.  Remember, copyright law is there to protect us – and others.  It’s not just for photographers! Musicians, painters, sculptors, writers and more all are protected by copyright, and we as a collective group of creatives need to work together, and not divisively.

If you’ve got your own resources, ideas, tips, or suggestions on how to produce music safely and legally for things like photo slideshows and podcasts, feel free to chime in to the comments and share resources with the community!  I love to hear from others and always enjoy learning about new content outlets all the time, so insert your own thoughts below!  With that in mind, keep on shooting and we’ll see you back here tomorrow!

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6 comments for “Copyright Isn't Just for Photographers….

  1. Michael Petersheim
    August 27, 2010 at 9:43 am

    Dead on, Jason; thanks for the timely reminder. If we demand respect of copyright laws, we’d better respect them, too.

    • August 27, 2010 at 10:40 am

      Thanks for the comment Michael – this was a fun piece to put together as it pulled from both my photography background and my political science undergraduate and post graduate studies. Hopefully the legal mumbo jumbo wasn’t too drawn out… 🙂

  2. Rebecca
    August 27, 2010 at 9:17 pm

    These are really good points! I am an attorney and I see people getting into very costly trouble with other people’s intellectual property on a regular basis…trust me, it is not worth it!

  3. August 30, 2010 at 7:17 am

    I discovered multiple podsafe music sites years ago. Wanted to make sure I didn’t violate anyone’s copyright.

    As you know, I’ve actually had content (not photos) copied directly from my gallery site and used by a new competitor in the same business I am. Did the DMCA notification and all was well, although the web developer got very indignant with me and told me that people take content from other sites as filler every day. Interesting experience!

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