The Breakdown: Our next interview in the SXSW Q&A series is with Robert Strent of Grubman, Indursky & Shire, PC who will be leading a panel entitled ‘Don’t Get Sued! A Guide For Content Creators.’ This panel will showcase practical every day issues and advice around content ownership, licensing, rights/clearances and employment relationships. Get a glimpse of the highlights below.
S/G: What can people expect to hear from your panel ‘Don’t Get Sued! A Guide For Content Creators‘?
Robert: The panel will highlight what content creators need to do in order to make sure they own, control or otherwise have the right to use and exploit their content in the manner they intend. The idea for the panel came to me while I was working on a deal that involved taking content a client had created for exploitation on the web and re-purposing it for inclusion in a TV program. As the client went back and reviewed the status of the rights it owned or controlled with respect to this content (something all television networks would require in this situation), it turned out the client didn’t always have the proper music clearances, appearances releases, location releases, etc. As a result, some of the content could not be re-purposed. It occurred to me that as the lines between so-called new media and traditional media continue to blur, these types of issues will continue to present themselves.
S/G: What content legal considerations are most often ignored today?
Robert: I don’t think I can point to any particular legal considerations that are ignored more than others. When it comes to something like user generated content, music is obviously a big ticket item, and the unauthorized use of music has certainly gotten a lot of press over the past few years. When it comes to “professionally” created content, it’s really just a matter of whether the creators are paying attention to all the different elements for which rights need to be obtained (or “cleared”). Of course, there are plenty of situations where the content creators know exactly what they have and don’t have in the way of clearances, and they choose to put the content out there without full clearance. This might be because they feel confident about having an alternative basis for using uncleared content (such as the “fair use” doctrine under copyright law) or they think they are flying so far under the radar that the owner of the uncleared rights will never come after them (or decide it’s not worth going after them).
S/G: What do people need to keep in mind when it comes to licensing third party material for inclusion in content they are creating?
Robert: I’d say there are 2 main points to keep in mind: First, the license needs to authorize the content creator to exploit the licensed material in all the formats and media where (and for so long as) the content creator intends to exploit his/her content (e.g., on the web, on tv, in films, in print, etc.). The cleared media and the length of the license affect the cost (if any) of the license. Content creators should carefully consider all the ways in which they might be using their content in connection with the negotiation of their licenses. Second, the content creator needs to be sure they are obtaining rights with respect to all aspects of the content being licensed. For example, a license to use a photograph of an individual generally requires permission from the copyright owner (usually the photographer) and the subject of the photograph.
S/G: When is content owned by an employee vs. the employer?
Robert: The simple answer is the employer owns content created by the employee as a “work made for hire” under copyright law. However, there are certainly shades of grey because it’s not always clear whether an employee’s creation is within the scope of his employment. Factors to be considered in determining whether an employee’s creation are owned by the employer include when it’s created (during or after the work day), where it’s created (on or off the employer’s premises) and the materials used in connection with the creation (e.g., equipment owned by the employer). Employers and employees can choose to address these issues in an employment agreement to create clear boundaries.
S/G: What are you looking forward to seeing at SXSW 2010?
Robert: I really enjoy the energy of the event and seeing what’s new and hearing what people are talking about. As an entertainment and media lawyer I do a lot of film work, so I’m also looking forward to seeing a few films. Unfortunately I don’t think I’ll be around for the music part of the festival like I was last year, so that’s a bummer.
Explore the rest of the SXSW 2010 Q&A Series.