Protecting Creative Speech in Practice
Let’s talk intellectual property. Not patents and trade secrets, not that “hard stuff.” I’m talking creative intellectual property. What some call “soft IP.”
You are on-line and copy images or audio to use somewhere else—like a video presentation. Do you give credit to the original author by reference or otherwise?
We typically cite the source of text in our arguments. We copy and cite to legal precedent every day. It is what we do. Every profession has some sort of writing where you want to acknowledge the authority you use—to strengthen your own argument. When trying to prove something, it helps to demonstrate the source of your proof. (Let’s not talk about Facebook debates and fake news right now.)
But what about when you download music or visuals to enhance a presentation? Are you copying without license? Are you missing the opportunity to promote or to progress the resource you are using — the arts?
The ease of content grabbing from digital content can make it easy for us to forget the consideration we owe to the original content producer – the author, the creator, the musician.
The Constitution of the United States calls upon Congress to promote creative expression by protecting the product of that expression. In the constitution, there is both a patent and copyright clause, and a freedom of speech amendment. The framers thought that the federal government should promote creative expression before they thought that the federal government might actually silence it:
“Congress shall have the power…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Const. art. I, §8, cl 8.
Three well-known federal laws evolved from that mandate, yielding three types of protected property: patent, copyright, and trademark. These are meant to progress “science and useful arts” respectively. Note, the Constitution does not say protect, it says progress. The way to progress those fields is to encourage work; we do that by protecting the work artists and scientists create. So much so, we consider those works to be intellectual property.
What is “intellectual property”? According to Black’s Law Dictionary, the primary meaning is “…a category of intangible rights protecting commercially valuable products of human intellect. The category comprises primarily trademark, copyright and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition.”
As electronic media has made duplicating content less expensive and, sometimes, nearly unprotectable, the value of copyright verses publicity and the need for distribution has changed. In the world of music, this has changed the nature of content.
Take two songs: I love both, but one is the product of an artist who made his money by copyright, the other the product of artists who make their profit by viewership.
Summertime, from Porgy and Bess. Songwriter, George Gershwin. Lyrics Debose Heyword.
This song is built over twelve chords. This song can make money every time it is covered and every time it is played in performances or downloaded. It was written in 1935, so it will have another eleven years of protection, and then it cycles over to the public domain. Works published before 1978 are protected for 95 years from publication. If the work was published after 1978, the copyright lasts for the life of the songwriters plus 70 years.
Havana, Songwriters/Lyricists: Camila Cabello, Jeffery Williams, Frank Dukes, Brittany Hazzard, Ali Tamposi, Brian Lee, Andrew Watt, Pharrell Williams, Louis Bell, Kaan Gunesberk,
This song is built over four chords. It makes money every time it is downloaded and every time it is synched. It could also make money every time it is covered and then downloaded or performed. When you are paid for the content of the performance over the content of the original copy, which gets more attention?
Don’t get me wrong, I like both. Both songs are critically acclaimed. I could not profess to play either by ear—I would have to download the lead sheets. I wager, however, that I will listen to one a lot longer than the other. One of them takes a lot longer to learn than the other. Summertime’s content is rich in the complexity of the music; Havana is rich in its performance.
And when we fostered complex content, we progressed the art. Summertime has been covered by a label-backed musician over 20 times. Summertime is the product of time; from a time when writers garnered more respect for their product—because its protection was more easily afforded.
Some critics of intellectual property claim that its protection comes at the expense of free speech. Advocates of intellectual property protection suggest that if we continue to think of expression as free to copy, the marketplace of ideas that free speech protects will be devalued.
Thankfully, this seems to be an area that has always been well-negotiated—or at least subject to meaningful negotiation. For example, we have compulsory licensing which allows artists to protect songs.
Without either free-speech or copyright, we would not have the conversation, whose version of Summertime do you like best?
As attorneys, we are sworn to protect the Constitution. It is our job to make sure the Court’s continue to defend the rights of our clients and the Constitution. It is our job to protect useful arts—like authorship and screenwriting. Where would many of us be if Harper Lee had to stay in law school and didn’t instead pick writing as her career. How many of us chose to be a lawyer because the way we saw a lawyer portrayed in a work of art?
To do our jobs, we are accustomed to copying the text of those who came before us and, with proper citation, using their words to argue for our clients. We should do the same when presenting those works of art so well done that we think of them as a part of our lexicon.
If you respect and cherish the Constitution and the arts, don’t download music or artwork and casually use it in your next presentation—not unless you have obtained the right to do so. Don’t forget—copyright protection is in the Constitution—the Constitution we swore to protect.
Are there ways to use content lawfully? Yes. Doing it the right way is easier than you may think. Web-based vendors will license music for your professional videos. Vendors will sell you picture backgrounds that can make your power-point stand out from the standard “choose your background” you can find in the software. Or, contact the artist.
If you are looking for a visual or audio to use in your work, do something novel and get off the couch. Go to a gallery. Go to a piano bar. Give the gig to a local. You might make a friend and you might discover some hidden gems.
Finally, just because listening to a musical composition may be permitted on-line, that does not grant you license to use it. When it comes to music, simply giving credit to the band or the author is not sufficient. People think it is because if you post a video that incidentally had music in the background, most networks like Facebook require you to note that. This assumes where your video captured background noise, the venue already paid into the performance rights. That instance however differs completely from deliberately synchronizing an audio to a video. If it is more than a sample, license the rights.
Also, it does not matter whether you are using the music for non-commercial purposes (except strictly education). People think that if you are not selling the presentation or using the presentation as a commercial, that copyright does not apply. That is simply incorrect. Some smaller subsets of soft IP can be used if it is not commercial, like a person’s likeness. For example, you can write about Harper Lee, but you can’t use her name to see something. In other words, you can’t trade off the work that goes into her celebrity goodwill. At least not here in Florida, not without violating Section 540.08 of the Florida Statutes.
Here are useful sites if you are interested in learning about music and art licensing:
So, enjoy all those creative works…just don’t steal them. And if you have the chance to commission one, go for it. Be a patron.