Legal Danger Zones to Avoid
As an online entertainer, approach the following issues with caution and an informed understanding of your rights and responsibilities:
- Copyright violation: Don't use others' work without permission (to learn more, read Chilling Effects’ FAQ on piracy and copyright infringement)
- Defamation: Avoid saying harsh things about other people or businesses (and swing by the Electronic Frontier Foundation’s guide to online defamation law)
- Violation of publicity rights: Don't attempt to advertise or earn a profit using someone else's personal brand (and check out the Electronic Frontier Foundation's publicity rights wiki)
- Invasion of privacy: Be careful about sharing information that others might consider to be private (for more information, read through the Digital Media Law Project’s materials on gathering private information)
- Negligent publication: Be careful about sharing advice through your work that might harm others (and read Lloyd R. Rich’s article on negligent publication to better understand how you might get in trouble)
Should you wish to reduce risk, consider incorporation. Incorporating as a business enables you to shield your personal assets from legal issues associated with your work as an entertainer (such as lawsuits and bankruptcy). For guidance on choosing a business structure and incorporating, utilize the helpful guides and overviews provided by the Small Business Association.
On Copyrighted Work and Fair Use
Many entertainers use the Fair Use argument as an excuse to incorporated copyrighted music, images, and footage into their work. Fair Use is outlined thusly in Section 107 of United States copyright law:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Fair Use in Plain English
Generally speaking, Section 107 means that you can use others' copyrighted work for "fair" reasons such as:
- Criticism: Entertainers who deal in parody frequently frame their work using the Fair Use argument as something providing criticism
- Comment: More often than not, entertainers using the Fair Use argument say they are commenting on the copyrighted work being reproduced (e.g. in an artistic manner, by re-dubbing it or remixing it)
- News reporting: Many online entertainers report on current affairs and present work that could be construed as news reporting
- Scholarship: As an entertainer, you may present educational materials that could be considered as scholarship
- Research: Should the entertainment you provide be didactic in nature and cite many sources, you may be seen as presenting research- even if you do so in an entertaining manner
For criticism, comment, reporting, scholarship, or research to be seen as justifiably using others' content, it had better:
- Be produced for the public good
- Not make a profit
- Be of high quality and contribute something valuable to the world
- Only include a small amount of copyrighted content (i.e. be mostly original)
- Not endanger the copyright holder's ability to make a profit or otherwise benefit from the copyrighted content
Is Fair Use Worth the Risk?
Most lawyers will tell you that use of copyrighted material under the Fair Use argument isn't worth the risk. Corporations don't see Fair Use as a legitimate excuse for using their content, and some platforms have filters that prevent you from uploading copied content even if you have legitimate grounds to use it. If you really want to play it safe, keep your content 100% original.
The downsides of using copyrighted work under a Fair Use argument include:
- Not being able to monetize it
- The risk that it will be taken down by your host or platform
- The risk that publication of the work will be blocked by automatic content filters imposed by your platform
- The risk that you might get complaints or threats directly from the copyright holder
Many entertainers are willing to forego income and run the risk that their content may be eventually taken down. The decision to do so is up to you. Keep in mind, however, that it never hurts to ask for permission. Who knows- you just might get it! What's more, there is a litany of Public Domain and Creative Commons-licensed content online that you can legally use without first obtaining permission- just be sure to properly attribute it.
Contending with Copyright Violations of Your Work
Just as corporations get nervous when you use their content without permission, you may get nervous when others use your content without asking. That people will "steal" and share your content online in a suboptimal manner is inevitable. The only thing you can control is how you choose to approach the situation.
Many online entertainers are blasé about their personal intellectual property rights. In many cases, indifference to the misuse of your intellectual property is ideal. If you play your cards right, the spread of your work, be it legal or illegal, will only augment your online reputation.
Those who aren't so comfortable with others using or sharing their work without permission have three options:
- Polite emails: The most courteous and kind approach, politely-worded emails letting copyright infringers know that they have misused your content and giving them options (buy it, pay royalties, properly attribute it, or take it down) are often very effective
- Public shaming: Ideal if you have a large audience, public shaming can be used to compel copyright infringers to own up to their misdeeds and amend the error in their ways
- DMCA complaints: When public shaming and polite notes have no effect, DMCA complaints may be your best bet
Keep in mind that the next step after sending DMCA complaints involves taking legal action. Should you plan to take someone to court over copyright infringement, make sure you have already officially registered your work with the United States Copyright Office. Though your work is automatically copyrighted when you publish it, additional measures must be taken should you wish to get litigious.
We do not recommend getting caught up in stolen content issues and DMCA complaints. Your job as an entertainer is to contribute new, unique value to the world, not chase after petty thieves and misguided fans who ignorantly misuse your work. Focus too much on the wrong activities and you'll lose your competitive edge.
You can reduce the odds of people misusing your content without your permission by making it easy to use your content with your permission (and without the hassle of asking you first). Simply leverage handy-dandy Creative Commons licenses. To learn more, visit our guides to applying these licenses to images and text.
Handling Contracts Properly
Before embarking on a collaborative project with anyone, make sure you are on the same page with regard to responsibilities, compensation, ownership, and expectations. It is typically best to have some written record of shared terms. This record:
- Ensures that all parties involved understand what they're getting into
- Catches problems or potential disagreements before they arise (if someone does not agree to the terms outlined in a written agreement, the agreement can be modified well before work has begun)
- Provides a reference point to which people can return should a disagreement arise
Some people are comfortable using informal email exchanges in which one party sends out a message summarizing terms and other parties confirm their agreement via replies. Others prefer to draw up more formal contracts that are faxed or emailed around, revised, and then signed and filed away in crisp, fresh-smelling file folders. Both types of exchanges can be regarded as legally binding contracts in most cases.
Though legally binding, contracts are best used as foundations for strong, mutually-beneficial relationships rather than punitive rulebooks. Though you could take legal action against someone who violates a contract you signed together, doing so is not likely to be worth your time and money unless this person's betrayal cost you over $20,000.
Should you not know where to start when drawing up a formal, thorough contract, swing by Docracy. This free database of contracts enables you to customize samples to suit your individual needs, share them with partners, collaboratively revise them over negotiations, and collectively sign final agreements.
Contracts that you sign with collaborators should specifically address entertainment-specific issues including:
- Revenue splits
- How each individual will be credited
- Intellectual property ownership
- Individual responsibilities
- Timelines and deadlines
- Grounds for early termination
If you want to maintain full ownership of a creative work, but need to hire other people to help with its creation, utilize a work made for hire agreement. Such agreements make it clear that contractors will not maintain intellectual property rights to work they create on the job.
The Importance of Disclosing Sponsorships
Some entertainers have the good fortune of signing sponsorship contracts with companies and advertisers or receiving free samples of products and services from various businesses seeking promotion. While you are absolutely free to promote products and services within your work, you should make it clear that you are receiving compensation for such endorsements and recommendations.
Before promoting products and services within your work, read the Federal Trade Commission’s guide to making effective disclosures in digital advertising.
Though we strongly advise reading the entire guide from beginning to end, the gist is:
- Ads need to be clearly and prominently disclosed
- A small note about sponsored content in your footer is not enough
- Disclosure of sponsorship should be unavoidable even to someone taking a cursory glance at your work
- Every piece of sponsored content must contain disclosure of the sponsorship (it is not enough to disclose sponsorship in the first of an ongoing series of sponsored content and assume viewers/listeners/visitors will know subsequent releases are also sponsored)
Keep in mind that you should also provide clear and prominent disclosure of sponsored content in social media posts- even on platforms like Twitter where your word count is limited. Common means by which you can easily disclose that a post is meant as an advertisement is to put "Ad:" or "Sponsored:" at the beginning of the post, or add "#Ad" as a hashtag.
In the name of good form, do not promote or endorse projects that you do not genuinely believe would entertain, help, or improve the lives of your fans.
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