Dear Artists, Don’t Stick Your Head In The Sand

Imagine one day you decide to start a podcast. You're very excited about your new venture and spend countless hours researching topics, writing copy and setting up your recording booth just so. But you know that if you want people to listen, it needs to be entertaining, and 45 minutes of you talking into a microphone won’t be. It's got to be a real multimedia experience; that's the difference between entertainment and lecture. Among other things, you'll need music, maybe some sound effects, and even archival audio material to spice things up. 

So where do you find those things? And when you find them, do you properly attribute them? Do you request permission to use them and pay a fair licensing fee? If there’s something specific you want, do you make a good faith effort to find the owner, or do you just take it? If you don’ have satisfactory answers to these questions, you may want to rethink your strategy before you hit "publish."

One hallmark of being an artist is excitement about your latest work and a strong desire to get it out into the world. You want people to see it, to comment on it, and hopefully, to enjoy it. Any artist who claims otherwise is lying - to you or themselves. It's easy in that situation to get tunnel vision and let caution fall by the wayside. When momentum is on your side, why get bogged down in administrative matters?

I understand that impulse as much as anyone. I've been an artist (I like to think I still am) and I see it with my clients.  But I want to take this space to urge you, dear artists, not to stick your head in the sand and assume no one will care about those administrative matters. Even if you don’t, I promise you someone else does. I’ve long advocated on this blog for sweating the business stuff because being an artist these days means being a business owner - whether or not its formalized and even if it's not a primary means of income. Using the copyrighted work of another without permission puts you and your business in jeopardy. Maybe not today and maybe not tomorrow, but eventually someone is going to notice, and they're not going to accept "I didn't know" as a reasonable excuse.

It's tempting to pin your hopes on fair use, but the problem with fair use is that to prove you’re covered by it, you need to defend yourself, which almost certainly means thousands of dollars in legal costs. Some courts view fair use as a right, while others view it merely as a defense (which means you can't assert fair use until AFTER you've been sued), but practically speaking, the only way to know for sure whether fair use applies is for the litigation to play out. Just saying the words "fair use" is no more a shield against litigation than yelling "I declare bankruptcy" a way of erasing debt.

We live in a litigious society. And IP holders, especially large corporate ones, have no compunction about hailing little guys into court over minor infractions. Defending yourself will take money you don’t have, and months or years out of your life. Sometimes, companies go bankrupt simply defending themselves in court. I can assure you that even if you win, it’s not worth it.

Which means - let’s say it together - you have to sweat the business stuff. You need to have things like contracts, bills of sale, release forms, licensing agreements, and business bank accounts. It means you probably have to incorporate your business. It means you can’t rely on fair use unless a lawyer tells you it’s okay. It means you have to ask permission to use work you didn’t develop. There’s a lot more to it than that, but you get the gist.

Don’t stick your head in the sand, hoping that ignorance will save you. Pay attention to the administrative matters. Build it into your schedule and workflow. If you hate doing it (welcome to the club), have a friend or spouse or family member help you. I’m not trying to rain on your parade. I’m here to tell you the rain is coming one way or another. I just want to make sure you have an umbrella.

On Making A Good Faith Effort To Get Permisison

Whenever a prospective client tells me they want to use a pre-existing work of art but they couldn't find the artist to ask permission, my first question is, "how hard did you look?" Their responses tells me a lot about them. Is this someone who is genuinely trying but stumped? Or is this a person who isn't interested in doing some hard work? If you've spent any time reading this blog, you know I'm big on getting permission before using someone else's work. First, it's legally much safer for you than relying on fair use. Second, it's just good karma. This is one arena where I'm not an adherent of Grace Hopper's immortal quip, "It is better to beg forgiveness than to ask permission."

You don't want to get sued for copyright infringement, which is why you should always ask permission before using someone else's work. And a cursory effort isn't going to cut it. No, you need to make a "good faith effort." In the law, we generally define that as what a reasonable person would determine is a diligent effort to produce a desired result. In other words, you need to do more than a quick Google search before calling it quits. It's tempting to think that because access to the internet is so ubiquitous, everyone must be online and instantly reachable. Unfortunately that's just not the case. Sometimes artists are hard to find, which means you gotta do some real sleuthing. 

So what does a good faith effort look like in the real world?

1. You have to determine if the rights are still owned by anyone. Generally speaking, art made prior to 1923 is in the public domain and therefore owned by no one. But even if you suspect that's the case, do the research anyway. You don't want to be sued by the estate of a long-dead jazz musician just because you assumed his work was up for grabs.

This chart is a useful tool to get your mind oriented around the issue. You should also use as many research tools as you (and your wallet) feel comfortable with. Google is a good place to start but not the be-all/end-all. There are private copyright search companies you can hire. You can hire a lawyer. You can also do a search through the Copyright Office database (as well as the Writer's Guild if the work is written) to track down ownership over a specific piece of work.

I should note that these tools will only help you determine if a work of art has been registered or published. Any work that hasn't been will require some more creative investigating on your part, I'm afraid.

2. You have to get in touch with the owner. This is where things usually fall apart for many of the people who contact me. Unfortunately there's no guaranteed way to find someone, especially if they don't want to be found. Certainly, you can start with the tools I mentioned above, and if the work is registered somewhere, there's usually some contact information associated with it. But ultimately, you may just have to call around.

I once had a client try to get in touch with a reclusive painter who had virtually no online presence. But through an exhaustive Google search, the client found a gallery in New Mexico that was selling some of that artist's paintings and with a little prodding, got the gallery to put her in touch with the painter.

Sometimes artists have managers or agents and you have to make contact through them instead. Go online and see if you can drum up client lists for some of those agencies. Maybe some of the rights to the work have been sold or licensed to a third party. Contact them and see if they can put you in touch. Maybe the artist is giving a lecture at a local university. Go to the lecture and try to meet him or her in person.

There's a fine line obviously between stalking and diligence and I strongly recommend you hew towards the latter. I don't recommend going to the Whitepages and soliciting them at home since that's pretty creepy and they probably won't respond well to it. But a communiqué sent through appropriate professional channels is okay.

As you can see, there are a lot of options open to you. You might have to get creative, and periodically do a gutcheck to see if what you're doing violates social norms, but these are all strategies you should consider before giving up.

3. Lastly, when you do get in touch, be nice, be friendly, but be direct with your ask. Don't waste their time and don't overstay your welcome. Get what you want, IN WRITING, pay for it, and get to work. There's no guarantee they'll cooperate, but if you act like an entitled brat, that's a surefire way to guarantee they won't.

Ultimately you may not find the artist, or you may find them and get no response. At that point, proceeding with their work becomes a question of risk. Did you make enough of an effort? Does fair use apply to the way you want to use the work? Before you make a judgment call on either of those questions, talk to a lawyer first. Making a good faith effort to find the artist and ask permission can sometimes be hard work, but from my seat it's critical to keeping your karma good and your ass out of court.

Steven Soderbergh Turns Raiders of the Lost Ark Into Silent B&W Fan Film, No One Sues

A long time ago, I was a young aspiring filmmaker and wanted to learn - really learn - how to make good films. So I went to a family friend who had some connections in the entertainment business and asked him what to do. He said "watch a lot of films."

So I did. And I became a colossal movie nerd. And even though the filmmaking part of my life is over, I still watch movies to learn from them. It's nice to know I'm not alone.

The other day, Steven Soderbergh, one of the most interesting mainstream filmmakers working today, posted on his blog a version of Raiders of the Lost Ark that he recut into a silent B+W film as an exercise to learn about film staging from Steven Spielberg, a "filmmaker [who] forgot more about staging by the time he made his first feature than I know to this day." He also replaced the classic John Williams score with the score from The Social Network, by Trent Reznor and Atticus Ross to strip away everything familiar about the film and "aid you in your quest to just study the visual staging aspect." For Soderbergh, staging is important because it "refers to how all the various elements of a given scene or piece are aligned, arranged, and coordinated...I value the ability to stage something well because when it’s done well its pleasures are huge, and most people don’t do it well, which indicates it must not be easy to master."

In other words, "I operate under the theory a movie should work with the sound off, and under that theory, staging becomes paramount."

As a movie nerd, I love that Soderbergh did this. As a lawyer, I'm cool with it too. In his blog post, Soderbergh strikes a defensive, almost sheepish, tone, saying that he's aware he's not allowed to recut Raiders, but did it anyway as a learning exercise. This hedging caught me off guard a bit, since it stands in opposition to the confidence he displays in the rest of the piece. Nevertheless, if I was his attorney, I'd tell him not to worry; as far as I'm concerned, this is a classic fair use scenario. I've spoken about the pitfalls of relying on a fair use defense in the past. My chief concern is that it's not a cut and dried thing. You have to weigh different factors based on the particulars of your case. To complicate matters, fair use is an "affirmative defense" which means you have to wait until you're sued for copyright infringement in order to assert it. It's a tough legal doctrine to use and even tougher to use well.

That doesn't mean you always need to ground the flight before it takes off, however. There are some pretty useful questions you can ask ahead of time to gauge whether using someone else's work without their permission is a risk you want to take. For starters, understand that the issue is less "what" are you doing to the already copyrighted work than "why" and "to what end?" If you're trying to make money from it or impinge on the owner's right to profit from it, that's the kind of thing a court would smack you for. But if you're using the work to inform and educate, or if your use says something critical about the work, those are the classic fair uses scenarios. In this case, that's exactly what Soderbergh is doing. He recut the film in order to say something about a crucial aspect of filmmaking. The fact that he's using Raiders to comment and teach is critical to the analysis, and it helps douse a potential lawsuit before it ever arises.

Don't forget the politics of this either. It's doubtful that Paramount (the film's copyright holder) or Spielberg would want to drag him through a legal proceeding. Soderbergh is a respected and beloved filmmaker, still at the height of his power (The Knick, anyone?). He's a potential collaborator and some of his movies made real money - i.e. the Oceans Trilogy. That's not a gift horse you look in the mouth. And let's be honest, this is precisely the kind of nerding around that Spielberg would probably appreciate.

Raiders of the Lost Ark is my all-time favorite film and Steven Soderbergh relied on fair use to recut it and show us just how great it is. In some alternate universe where I'm still 19-years old, I'm over the moon excited to watch and learn from it. Hell, 34-year old me still is.

Advice From Attorney > Info From Internet > Nothing

Happy Friday dear readers! I had a post planned this week about the whole GamerGate debacle sweeping through Twitter like wildfire, but then my wife went into labor on Monday night and long story short, I'm a dad now and all my energy has been spent taking care of my wife and infant daughter Hannah.

But in the very little downtime I've had at the hospital, I found this chart online and thought I'd share it with you. It lays out in fairly clear terms when you can and cannot use someone else's copyrighted work. I initially hesitated to share this chart because while the information is generally correct, the law in reality is never this clear cut, and reducing it to a simple phrase or image can be a dangerous proposition. As I wrote last October:

I like to give away lots of free legal information on this blog because I think it’s important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I’ve had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can’t cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can’t give you advice or insight. It can’t examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn’t mean you know how to apply them). No two situations are the same and everyone’s needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.

This is a reasonable view and I stand by it. Law without anlysis is just data, and data without analysis is useless. That said, I'm sharing this chart anyway because some of you may not have the finances to hire a lawyer, and having some information is better than having none. In fact, I've whittled it down to a pretty simple formula.

Advice From Attorney > Info From Internet > Nothing

So hang onto this chart and use it when you need to, but just remember that this is only part of the story and it may not apply to your situation. Be careful out there and call me or another qualified attorney if you have any questions about what this all means.

I'll be back soon with my thoughts on GamerGate and some other recent news items. Until then, Cheers!