Navigating the Contentious World of Intellectual Property Rights, Part 1

Here is a common moment in the process of negotiating our contracts for projection designs: After coming to terms on all points financial and creative, it is time to hand over a contract for signing. The producer's contented grin morphs to horror as he sees the thick sheaf of paper and feels its weight. “Why is the contract so big?” he asks. It's then that we begin our little lesson on intellectual property rights, and why they are VERY important to that producer and to us….

It is a tricky time for this topic. Definitions and practices up to now have been very subjective and negotiable. New breakthroughs in delivery technologies (MP3, DVD burners, etc.) have awakened the sleeping giant of the content providers. The first to be pushed into the flames has been the recording industry, as it struggles to incorporate the paradigm shift of electronic distribution into its business plan. Represented by the RIAA, the record labels have poured millions of lobbying dollars and significant legal maneuvers into maintaining control of their content, their intellectual property. Yet they have found themselves stymied by the persistent march of technology and a shift in common ethics and philosophy. Somehow, many people who would never consider the physical theft of a CD from a record store now have no problem with downloading an MP3 of their favorite new song. As we will see, the very existence of intellectual property rights is being challenged at many levels.

As functioning artists in the “real” world of the entertainment business, we have to know, understand, and apply these rules. As functional artists existing in a purely creative space, we have to look at the larger concept and its impact on creativity itself.

Over the course of two columns we'll come to an understanding of the status quo and how to apply it to your process; we'll also try to shed some light on an incredibly broad and hotly contested topic at a philosophical level.

Projection design can encompass as many formats as there are designers. Gobos, Pani projections, 35mm slides, scenery machines, and digital projection are just a few of the main formats used individually and in combination with each other. As designers in this field it is incumbent on us to create imagery and media. Sometimes this media is entirely original and non-referential; other times it is quite topical and recognizable. The tricky line that must be walked is twofold: How does a designer protect from others infringing on the copyright of their new and original creations, and how do designers protect themselves from being prosecuted for inadvertently using materials in a design provided by the producer? Certainly we don't want unscrupulous folks somehow acquiring our media and repurposing it. Conversely, the producer will want protection for their organization in the case that you, the designer, use materials that infringe copyright.

Copyright is ultimately defined by legislation under Title 17 of the US Code and refers to the author's exclusive right to:

  • reproduce,

  • prepare derivative works,

  • distribute copies, and

  • publicly perform and display his/her works.

Think of the word “author” as referring to creators of all sorts such as writers, photographers, artists, film producers, composers, designers, and programmers. Think of copyright as a bundle of rights granted to authors. These rights may be transferred or assigned in whole or in part in writing by the author. Copyright protection arises automatically when an “original” work of authorship is “fixed” in a tangible medium of expression. Registration with the Copyright Office is optional, but if you intend to defend your copyright it is necessary.

The government defines “original” to mean that a work is original to the author/creator and was not copied from pre-existing work. They further define “fixed” to mean that a work is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Even copying a computer program into RAM can be found to be of sufficient duration for it to be “fixed.” Registering a copyright can protect a projection design from being taken out of context and also from being distributed without your knowledge, or used beyond any written agreements you may have with a producer. Designers should not assume that since the projection design is in essence a piece of a larger artistic endeavor that it will be protected by the larger entity. A written agreement with the producer prior to conceptualizing will keep clean any arguments later on about who owns what and exactly what you are being employed for. Royalties should be included in this agreement, in addition to the possibility of any future productions.

When creating projections, the designer also needs to be aware of where the building blocks are coming from. Is it copyrighted? Is it royalty-free? If not starting with an original photo, do you have the rights to use the piece you are starting with? These are referred to as derivative works.

Derivative Works

If you are a designer and your design will be rooted in, or largely incorporate elements of, somebody else's creation, then your design will be a Derivative Work.

There is a rich tradition of derivative works in the arts and culture of modern society. Literary farce, social satire, cultural and political commentary are all themes that have seen extensive use of derivative works. Andy Warhol's much-vaunted Campbell's Soup Can is a classic derivative work. A recent, hotly contested derivative work was Alice Randall's novel The Wind Done Gone. A recasting of the Gone with the Wind story from the perspective of the house slaves, it was initially successfully banned by court order. The Northern District Court in Atlanta had ruled with the Mitchell Trust that the book violated the copyrights of the original novel. The 11th US Circuit Court of Appeals overturned the banning, ruling that the book had satisfied the criteria of being a parody, and thus a legitimate derivative work.

Derivative works are the door in the otherwise secure “wall” of copyright protection. Contrary to common interpretation, the creation of copyright laws didn't occur to ensure the enrichment of the creators (although this is a component). Instead, the framers of the Constitution constructed copyright law to protect and encourage the original creator, while supporting innovation of original ideas through derivative works. Ultimately copyrights are designed to expire, benefiting the greater society by making works of historical significance part of the fabric of public domain.

Fair Use

The law doesn't leave this door in the wall of copyright swinging wide open, however. The two simple words Fair Use define the practices that are held to be legal under the 1976 revision of the copyright statutes. Although the words are simple, the criteria are convoluted. Essentially, the legal bullet points for qualifying as fair use go like this:

  • Is the work of commercial or educational nature? If commercial, are rights secured?

  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and,

  • the effect of the use upon the potential market for or value of the copyrighted work [17 U.S.C. 107(1-4)].

Dizzy yet? This stuff is very important to us, though. Projection designers in particular seem to utilize documentary and journalistic styles that avail themselves extensively of fair use.

It is commonplace to start with an idea, a photograph, a piece of footage, a font, or even a character (e.g., Superman) to build projection into a production. So where do the basic building blocks come from? Frequently, especially with digital projection, the Internet is a great place to start the process. As a designer you need to be aware of how you obtain pieces, where they come from, and whom they belong to. There are many sites located on the web that allow designers to preview art-work, and they break down into two main categories: royalty-free sites and stock collections.

Usually, royalty-free sites offer the designer a vast area of clip art, photography in smaller resolutions, font collections, and rudimentary animations. They normally have a small user fee, or yearly membership dues of around $100. These sites are used primarily by the corporate market for printed and PowerPoint presentations. However, membership offers lenient usage agreements. You won't find “projection design” listed in the usage agreement, but advertisement and other projection-oriented things exist to cover our field.

Stock footage sites can be a godsend to the designer. Reaching out to find the image that is just right for a particular moment is a process that is now enabled by browsing web catalogues of stock materials. Many of the top sites have the absolute best talents in photography or illustration among their rosters of contributing artists. Most of the major stock imagery providers have varying policies for payment and use of their materials. It is common for materials that will receive greater or more commercial exposure to charge more for it. It is critical to make sure you are satisfying the policies for the art you have licensed to avoid issues cropping up later. In many cases you will be able to download a free image for “comping” purposes (working up or presenting the idea). This shouldn't be mistaken for permission to project it 40'-high onstage at Radio City Music Hall.

We are out of space, and a little out of breath. We'll be covering more specific contractual language in our next column, as well as doing a little more investigation of the outer fringes of “fair use.” Stay tuned.

Bob and Colleen Bonniol are partners in Seattle-based MODE Studios/Monarch Designs, specializing in a wide variety of projection-related design work, from theatre to corporate events to permanent installations. Bob can be reached at bob@modestudios.com; Colleen can be reached at colleen@monarchdesigns.com.