Eps 93 - IP Everywhere Means IP Trouble Is Everywhere Transcript

Erin Austin: Well, you know, I like to say that IP is everywhere. Well, the corollary to that is that IP trouble can be everywhere if you aren't careful. So this issue came to mind during a Q and a session that I had last week with a great organization that I recommend the Institute for Management Consultants. And we had a wonderful conversation and as.

Often happens, uh, all manner of IP related stories come up and one came up regarding a parent who wanted to record a school play and post it on the internet. Now, generally I try to avoid, uh, comment about IP issues that aren't in my niche. There are many, and I don't like to dabble. And so I like to stay in my lane of helping experts turn their expertise into intellectual property assets.

But I thought in this case I could reach back into my old life as a film lawyer and, uh, and give it a go. So those of you who may not know, I used to be at Warner Brothers and what is now Lionsgate and I used to do clearances for the content that went into films. And I also thought I would throw my marketing consultant a bone because she's been encouraging me to cover more pop culture topics.

And I am not a pop culture girl, but I figured, you know, this is the closest I can get, especially since I do have a recent example to fall back on. Since this weekend, I went to see the high school play of one of my son's friends. Who was in Greece, and so let's use Greece as an example to talk through the IP issues that come up when we are, um, Uh, recording high school plays and putting them on the internet.

So here is the trouble you can get into, uh, in the context of IP is everywhere, including all over high school plays. So there are the copyright issues involved with the script, you know, as you do the script. No, plays are eligible for copyright protection and almost all plays are still going to be eligible.

I should say, you know, Shakespeare, not not eligible for copyright protection anymore that is down the public domain, but any plays that are contemporary that have been written in the last, let's just use 95 years as a easy remind thing to remember. Assume that it is. Still protected by copyright and that you need permissions.

So the playwright or whoever the playwright may have sold or, uh, bequeathed their rights to, would still own those exclusive rights they have under copyright to perform it, to record it, to distribute it. And so you would not have permission to record it and distribute it without having a license from the copyright owner of the script.

In addition, there are script adaptations generally for high school plays, you know, so, uh, being able to create a derivative is also one of the exclusive rights of copyright owners. And so the derivative work would be eligible for copyright protection, you know, assuming The derivative has permission from the original owner.

The derivative, uh, work would also have copyright protection and most, if not all, um, school plays have been adapted in some ways, in some ways, because there are minors involved sometimes for time, uh, this particular performance of Greece, uh, As someone who has watched it many times, both the movie and the original Broadway play, I was disappointed to hear that the audience does not know that Sandy won't go to bed until she's legally wed.

And, and neither did they ever find out about Rizzo's bun in the oven. So it was a pretty sanitized version for a high school play, frankly. But in any case, we still enjoyed it very much. So that's that. Derivative screen adaptation also has copyright protection and so while the schools may have some sort of license to put it online.

That certainly don't have that certainly would not translate to you. Although I think that even the schools probably don't have the right to put those online, but I don't get into that. So that's just my assumption there. So what are some of the music clearance issues? So I don't come across music clearance issues very much at all in working with experts with corporate clients.

Um, but they can come up. Music clearance issues are a little more complicated than the script because you have the audio and video. So The, the, the song itself. So the song is the lyrics, then they, you have a recording. If someone has recorded it, the master, and then the ability to exploit that in connection with a movie or a play.

So that's. synchronization rights. So there's several levels of rights involved with music, which is honestly why I don't touch them even in film. You know, there are whole departments that deal with music clearances, um, and films, but of course, music is, you know, at the end of the day, music is Uh, protected by copyright and so, um, we've probably heard about compulsory licenses where, you know, I can create a cover of, you know, my favorite song and I can record it and I can distribute it and I do have to pay compulsory license fees, but I don't have to get permission from the artist to record my own cover.

I do need permission to use their recording, but I don't need it to use my recording. But that does not apply for when we are incorporating or synchronizing a song with a film or place. That's a whole nother level of permissions that you need. And so we do need to to, again, get permission if we're going to put on distribute a recording of music with a video.

So, um, All right, so what about the personal appearances? So we need to obtain the person, the consent to distribute somebody else's image. So we have, as each of us has a right of publicity and so that we have the right to control the uses of the person's image. Of our name, our image and our likeness, our voice.

And so we need to have permission to record someone and put them on YouTube. So do you have permission to record those performers, not just the performers, but. Anyone who's in the audience who you make, uh, who may get caught in there as well. So the people in the audience have privacy rights. Maybe nobody knows that they went out, you know, to go see Greece that night and they don't want their, their attendance recorded.

So we need to make sure we have permission from every. Person who appears in that recording as well, uh, distribution rights, you know, if you're going to put it on YouTube, you know, YouTube's terms of use will say like you promise not to upload anything that you don't have the rights to. And so if you do upload something that you don't have the rights to not only hat, do you have.

Copyright infringement issues, both with the playwright and the music involved. And you have, um, uh, right of publicity and privacy, right issues, but you also have contract breach issues with the platform. If you're uploading of that, um, recording is not in compliance with the terms of use of the platform.

And, uh, and then artwork, you know. The sets typically are created by the crew in the case of this high school play, you know, they brought up some parents who helped create those sets. And so where did the sets come from? Is it original? Or did they copy it from something they found online? Because they weren't worried about copyright infringement or debasing it.

You know, go up on on their stage for four days, um, or is it something that they got from the original play? You know, I don't know. Um, but I can tell you that it's not in the public domain and that you don't have the right to, um, make copies and distribute those set designs. And that doesn't even get into just specifically to the school play all the school policy and statutes that involve protection of children.

So that would be another issue. So, you know, I didn't create this to, like, scare you, uh, and make you too terrified to record little Johnny's, you know, debut performance and put it on Facebook. Um, we've all. Done it. And, um, but really just to illustrate the point that IP is everywhere and that we really do need to be mindful of where we are getting content and how we are using it and to make sure that we have permissions for it.

So to bring it back to our use in our business, maybe we saw you know, every Something on YouTube, you know, that we think would be interesting and want to share with our audiences. Maybe we, you know, consumed a module of a course, and we think it would be great. We talk about, you know, using other people's content and when it is recorded content, then we have all these by that.

I mean, video content. We have all these additional issues to think about making sure, you know, if it as at a Ted talk, for instance, making sure we have the consent, who, whoever owns that recording, making sure we have consent of all the people who appear in that courting. If there's, you know, some music introducing the speaker.

Or that's, you know, part of the intro or the outro having rights to use that music. Um, and, you know, for uploading it to some sort of platform that we aren't, uh, breaching those terms of use. So, uh, hopefully I didn't scare you to death, but I do want to make sure that you are aware that we do have to have permission to use content.

That we don't own, we have to get permissions for that. So, uh, hope you enjoyed this. Um, let me know if you have any questions. You can always find me on LinkedIn or at think beyond IP and don't forget IP is fuel.