This week, the 2nd installment of The Seay Firm’s Working Title Playwrights newsletter Q&A was sent out. This installment discusses some major issues relevant to not only writers, but artists of all kinds. Joint works, licenses for third-party content, fair use, and copyright infringement all are discussed. Read the full article here and below.
More Common Questions About Copyright for Playwrights
By John E. Seay, Esq., Attorney at The Seay Firm LLC (www.theseayfirm.com)
John is a former touring musician, tour manager, and music journalist, and current WTP Board Member. He is an attorney based in Atlanta, GA, who practices exclusively in entertainment law. John works with a variety of artists and arts-related organizations, including writers and a local theater production company. He blogs about issues related to entertainment law at www.theseayfirm.com/blog. Follow him on Twitter: @TheSeayFirmLLC.
In the last installment of this series, we discussed some common misconceptions mostly relating to the creation and registration of copyrights. This article will cover licensing, fair use, and infringement – three important areas that often generate the most confusion.
Question No. 1:I co-wrote my most recent script. Now, my co-writer wants to produce his own version of the play without my involvement. Can I stop him?
If you co-wrote your script, then you’ve probably created what’s referred to as a “joint work,” i.e., a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. The legal significance of a joint work is that each author of the work is a copyright owner of the work itself. That means that each author has an equal right to register and enforce the copyright in the work. In fact, unless you enter into an agreement with the other writer to the contrary, either one of you can commercially exploit the work, subject only to the requirement that the other copyright owner or owners get an equal share of the proceeds from such exploitation. Consider entering into an agreement with you co-writer if you want to ensure that neither of you can produce the play without the involvement of the other.
Question No. 2: Do I need a license to incorporate third-party content into my play?
Generally, if you’re incorporating third-party content into your work, then you need a license from the copyright holder to do so. If you don’t secure such a license before using the content, then, if the copyright holder finds out about that use, then you may receive a nastily worded cease and desist letter. And, because copyright infringement is a “strict liability” offense, meaning that it doesn’t matter whether you intended to infringe a copyright, the copyright holder may file a lawsuit against you for copyright infringement.
To obtain a license, contact the copyright holder. If you’re uncertain who holds the copyright, try searching online and the U.S. Copyright Office records. Note that a copyright holder has the right to refuse you permission to use the work in question. They can condition your use of the work on the payment of whatever license fee that they desire. Generally, what that fee is depends on factors such as what the content is, how you’re incorporating it, the scope of the performances of the play, etc.
Finally, if you create a derivative work based on another copyright protected work, e.g., you turn one of your favorite novels into a script for a play, and you incorporate elements of the copyrighted work into your own, then you may need a license to exploit the resulting work. If your script is simply inspired by the other work, but doesn’t include any of its copyrighted content, then you might be okay, although it would still be a good idea to clear the use with an attorney to ensure that you haven’t unintentionally created a derivative work for which you’d need a license.
Question No. 3: But what about fair use? Aren’t I allowed to use portions of copyright protected works for free under the concept of fair use?
Fair use is one of the most confusing concepts in copyright law, not only for authors, but also for attorneys. The Copyright Act provides that a use of another copyright protected work is non-infringing if it is “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
Whether a given use is fair is determined on a case-by-case basis by weighing several factors and applying them to the facts. Those factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion use in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Theoretically, no single factor in this list outweighs the others – it’s a balance of all four of them. For example, taking six seconds of a popular song might be an infringing use if those six seconds represent the heart of the song. Conversely, 30 seconds of a given song might be non-infringing if you need to play that much of the song in order to parody it.
Fair use is an affirmative defense to copyright infringement, meaning that you raise it once someone accuses you of copyright infringement. Because there are no bright-line rules as to what constitutes a fair use, you never really know if you’re safe. So tread in these waters carefully, and license where you can. Just because you and/or an attorney thinks that your use is fair doesn’t necessarily prevent someone from threatening legal action against you.
Question No.4: Yikes! Speaking of which, what exactly constitutes copyright infringement?
The answer to this question is more complicated than you’d think. First, to prove copyright infringement, you have to show that you actually own the copyright, that the copyright is valid, and that the other party has infringed the copyright. You show that the other party has infringed the copyright by showing that the defendant had access to the work, and that the infringing work is substantially similar to the copyrighted work. The more “substantially similar” the works are, the less access must be demonstrated. Conversely, if a work is very well known, then even a minor use of it might be infringing.
A claimed copyright might be invalid if it is, e.g., comprised of ideas, facts, concepts, functionally required elements, standard elements, public domain elements, etc., which aren’t protected by copyright law at all. Additionally, a claimed copyright is invalid if it isn’t sufficiently original, i.e., creative. If the work is only minimally creative, then the copyright is referred to as “thin,” meaning that the alleged infringing use usually must be exactly like the work in order for a finding of infringement to issue. Other doctrines may apply to limit copyright, but they are too esoteric to dive into here. If you have more detailed questions about what constitutes infringement, whether a use is infringing, and whether a defense to copyright infringement may apply, then you should probably consult an attorney.