I. Introduction
No one wants to feel handcuffed in their creativity, but sometimes your creative explorations require the use of someone else’s work. Yet at the same time copyright infringement can be both costly and can stop the production or use of your work in its tracks. So how do you use someone else’s work without landing in legal trouble? Here are the five primary ways creative people use another person’s work legally! We encourage our clients to be dynamic in their own creativity as well as in the way they view intellectual property. In this blog, we’ll list and break down the five most common ways that you can use another person’s work legally (in order of most to least common). The five ways are (1) Licensing the IP, (2) Using the Public Domain, (3) Leveraging Creative Commons Licenses, (4) Understanding the Fair Use Doctrine, (5) Setting Up a Work-for-Hire Agreement. If you make sure that your borrowed use falls under one of these categories, you can successfully avoid any infringement issues.
At the end of this article, we also provide a few mnemonics to help you remember these five methods & also a list of resources that you can bookmark to help you maximize your creativity in the future!
Licensing the IP
I. What is Licensing?
According to a well-known legal dictionary Black’s Law, licensing is a permission, usually revocable, to commit some act that would otherwise be unlawful.” In the intellectual property world, it’s a formal agreement where the copyright (or other IP) owner grants you permission to use their work under their specific conditions. An IP owner typically has broad latitude subject only to existing law. They can dictate any or all the parameters of the license such as its duration, geographic limitations, exclusivity, assignment rights, and more. A copyright owner could also deny granting a license for personal or moral reasons; they’re under no legal obligation to entitle you to their work whatsoever (with a few exceptions like mechanical licenses)
II. How to Obtain a License:
The easiest way to secure a license is to contact the copyright holder directly or through their authorized representative or agency. Come to the table with a clear idea of what you need, how you intend to use the license, and what incentives, usually financial, that might catch the copyright holder’s attention. Sometimes you can persuade the copyright owner on the purpose or content of your work alone. Not always, but don’t rule out the possibility particularly if there’s a charitable or noble angle to your work such as documentary produced to raise awareness of an issue.
III. What to Consider When Negotiating
Unless you have particular leverage or an attractive project, be prepared for the arbitrariness of licensing fees. The copyright owner’s idea of the worth of their work might not match yours or that of similar copyright owners. One song owner might demand five times more than another with a song that has similar qualities or success. This applies to any creative work – photographs, graphic designs, video, text passages, etc. Every copyright owner represents a different prospect so your best bet is to come to the negotiating table with something to offer, have a sense of license values for similar works, and have a backup strategy if the copyright owner’s fee is out of your budget.
Using the Public Domain
I. What is the Public Domain?
The “public domain” comprises the large breadth of works no longer protected by copyright and thus free to use. Once in the public domain, use is unlimited—slice it, dice it, tag it, bag it—it doesn’t matter; there are no restrictions on how the work can be used. Works enter the public domain after the copyright term expires, which is the life of the author plus 70 years. If it involves multiple authors, then it’s the life of the last remaining author plus 70 years. If it’s a registered, unpublished work, then it’s still 70 years after the life of the author, but it’s neither registered or published, it becomes 120 years from the date of creation (a different consideration). Works-for-hire (which we’ll talk about below) also expire 120 years after the date of creation.
II. How to Identify Public Domain Works
The easiest way to know if a work is in the public domain is to go through this quick investigation.
Is the work’s author dead? Yes. Ok, it’s easy enough then, check to see if 70 years have passed and if so, the work will have fallen into the public domain. If 70 years hasn’t passed, you’ll want to find and contact the current copyright owner (which is not necessarily the same as the author) and seek out permission. Alternatively, if the copyright expiration year is close enough, you can consider waiting until the work falls into the public domain.
Is the work’s author alive? Like above, you’ll want to find and contact the current copyright holder for permission. You can also consider the other sections of this blog to borrow the work lawfully without a license.
III. What to Consider
The possibilities are endless for public domain works, but often the difficulty is finding the right works that fit your creative vision. Some of this is the trial and error of getting familiar with public domain databases online. One consideration also is to keep track of what has recently fallen or what will soon fall into the public domain through some of the resource links provided below.
Creative Commons
I. What is the Creative Commons?
The Creative Commons (CC) (https://creativecommons.org) is a non-profit committed to the purpose of empowering people through shared knowledge and culture. As part of this, they offer extensive CC licenses designed to help creators share their work more. They allow creators to dedicate their works to the public good, but to also do so under various conditions. This allows you access to their works, while also honoring the wishes of the original author. A CC license can simplify the process of legally sharing and using creative works.
II. Types of Creative Commons Licenses
As I mentioned, CC licenses are offered under various stipulations, the most common being the following:
Attribution (CC BY): Use the work, even commercially, with credit to the creator.
Share Alike (CC BY-SA): Give credit, but any creations must be licensed identically.
Non-Commercial (CC BY-NC): Do what you will, but not for commercial purposes.
No Derivatives (CC BY-ND): Use the work, but it must be unchanged and credited.
The various restrictions are up to the author to designate. Failing to do so is a form of willful infringement against which the author may sue. Generally though, people who use CC licenses understand its mission purpose and are happy to abide by the license restrictions.
III. Considerations for CC Licenses
My most common use for CC licenses is to grab compelling images for various uses, usually under an attribution license. If you’re needing images for a website or similar online uses, this is great resource to consider! The website is a fun one to use but does take some time getting used to – in particular, the database for searches can be found through the black top right “Explore CC” button.
Understanding the Fair Use Doctrine
I. What is Fair Use?
Fair use is a legal doctrine that allows limited use of copyrighted material without the copyright owner's permission, provided it meets certain criteria. It’s not an actual license, but rather a legal defense against infringement. If someone were to accuse you of infringement and you’re able to prove a fair use exception, then you’d be able to continue using that work with impunity. It’s also a complete defense meaning that you wouldn’t owe any partial damages either. The most common fair use contexts are news reporting, commentary, criticism, research, education, and parody. The law considers the value of these uses to the public good as outweighing the relative loss of income to copyright owners.
II. Determining Fair Use
Determining fair use is an art not a science and requires a four-factor analysis. The four factors considered are: the purpose of use, the nature of the work, the amount used, and the effect on the original work’s market value. A proper analysis would consider all four but generally the substance or amount of the work used and that effect on its market value are considered weightier than the others. There’s also another consideration of whether the borrowed use is transformative in that it changes the nature of the work in such a way as to be its own distinct work. Unless your use is a cut-and-dry fair use exception, it’s often better to enlist an attorney to help do that analysis.
III. Considerations for Fair Use
I would’ve put fair use higher in the priority order but for a few reasons. Since it’s a legal defense, you typically wouldn’t have to claim fair use unless you were already in an infringement suit or settlement. Also, since the analysis is subjectively applied by the courts, it’s not entirely bulletproof. There’s always a chance that a court might consider a factor against your favor that you felt otherwise. Still, if you’re adamant that your use would be a fair use exception or it’s an important part of your work (here’s looking at you documentarians), one precaution you can take is a fair use opinion letter from an attorney that serves as evidence that you did your due diligence and were not knowingly infringing.
Work for Hire
I. What is a Work for Hire?
The last way to circumvent copyright infringement is to commission a work-for-hire or ask your employees to contribute relevant work(s) through the course of employment. A work-for-hire is one where the work is either created under the scope of employment or commissioned by a patron. In these circumstances, copyright ownership doesn’t belong to the creator but instead vests with the employer or person paying for the commission. You could imagine numerous scenarios where a creator might feel poached of his copyright ownership, so for commissioned works, the law requires that the agreement be in writing signed by both parties. It also requires express language that the agreement is a “work-for-hire”. This is designed to eliminate “he said-she said” ambiguity about who owns the work.
II. Considerations for Work-for-Hire Situations
While an agreement with express language is straightforward, what constitutes “scope of employment” can often be ambiguous. Case law has used a variety of factors to make these decisions including if the skill required was “employment-related”, who provided the materials, where the work was done, whether the creator has his own business that exploits the creative skill, and whether the employee handbook outlines the scope of employment. If you’re an artist, be mindful to draw a line between your work on the job and your independent work. Avoid using work computers to do personal work or working on your creative projects on company time. If you do this unknowingly, you could accidentally entitle your employer to ownership of your work(s). There are of course stories of employers holding employee “talent competitions” where they re-possess the works of their employees for company use. Remember, the owner of the work-for-hire steps into the shoes of the author and enjoys all the applicable rights.
As far as being a creator, you can always commission another artist to create a work tailored to your needs. In certain cases, if you’re in the same medium, you could also approach the artist about a joint ownership project. Get creative, if there’s a will, there’s probably a way!
Conclusion
In this blog, I’ve explored five key methods to legally use someone else’s work, unpacked them to some extent, and also shared some insightful considerations to better prepare you as a creator to borrow work(s) without infringing on the ownership of another creator.
Before I sign off, I’d like to share a few mnemonics to help you remember these five methods for later recall. As part of a holistic approach to life and the practice of law, I love to encourage people to use every available method to further their knowledge, education, and ability to make the of their time. Feel free to come up with your own!
Mnemonics for: Licensing, Fair Use, Public Domain, Creative Commons, Work for Hire
Lions Fighting People Climbing Walls
It’s always helpful to visualize to boost memory. If lions fighting people is too much for you here’s something lighter.
Lively Fairies Play Creative Waves
And then of course as a lawyer, I like this one too!
Lawyers Favor People Creative Works
There you go, now go out there and enjoy creating! #CreateEveryday. And if you ever need help or have questions, contact us at Zala Law LLC (contact@zalalaw.com)
Resources
CC Search Portal (creativecommons.org) – direct link to CC’s search portal
What Entered the Public Domain in 2023? | Smithsonian (smithsonianmag.com)
What Will Enter the Public Domain in 2024? — The Public Domain Review
Project Gutenberg: Access a large collection of free public domain eBooks.
ASCAP Licensing: Obtain licenses for music from a leading licensing agency.
U.S. Copyright Office | U.S. Copyright Office – the official place for copyright info!
Circular 30 Works Made For Hire (copyright.gov) – the U.S. Copyright Office’s comprehensive guide on the work-for-hire doctrine.
Licensing Overview | U.S. Copyright Office – more info about licensing music
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