Developing Multimedia Works -- a Legal
Thicket
By Eric S. Freibrun, Esq.
Apart from overcoming daunting software
development challenges, creators of multimedia works must maneuver through a labyrinth of
third party intellectual property and other legal rights relating to the content they may
wish to include in their products.
Multimedia Software Defined
As the term is currently used,
"multimedia software" generally refers to a class of software products combining
in digital form graphic, still and/or moving visual images displayed on a computer screen,
typically accompanied by music, narration and/or other sounds and text. This information
is manipulated by the user "interactively" by executing software commands
through a keyboard, mouse or other input device.
Multimedia software programs often
consist of subject matter or content previously existing in other discrete or separate
media such as books, movies, videos and music CDs, each of which is typically
independently protected by copyright and other laws. This information is then modified,
combined with new material, and adapted into its new form to allow interactive access and
searching via a computer. The aggregation of various pre-existing forms of content created
by the publishing, movie and music industries with newly created software and new content,
creates many opportunities for inadvertent infringement and violation of third party
rights. This article provides a quick summary of some of the various rights third parties
may have in multimedia content that developers need to be aware of in order to negotiate
necessary usage licenses and avoid infringement.
Multimedia Law
The law applicable to the development of
multimedia works is a hodgepodge of existing legal principles, some of which may be
familiar to developers in the context of protecting their own products. They also can
apply to protect the rights of third parties in various forms of content a developer might
wish to include in its multimedia work. Some areas of the law likely to be involved are
described below.
Copyright Law
Copyright law protects original works of
authorship fixed in tangible form. It will likely apply to protect nearly every item of
pre-existing third party content a multimedia developer would include in its product.
Under federal law, copyright owners are afforded certain exclusive rights that may vary
depending on the form of the content, whether an audio or video clip, graphic art image,
photograph, music sample, dramatic work or other text or software. These exclusive rights
are the right to reproduce (in any form), distribute, create derivative versions or
adaptations, publicly display and publicly perform the copyrighted work. A multimedia
developer’s digitization and transformation of any pre-existing copyrighted work
without permission of the copyright owner constitutes infringement. Willful and
intentional copyright infringement can carry a penalty of up to $100,000 per infringed
work.
Notwithstanding the above, a developer
may be free to use otherwise copyrightable content which has entered the "public
domain." A work may be in the public domain if the period for copyright protection
has lapsed or the copyright owner has forfeited its copyright, for example, by publishing
a work prior to March 1, 1989, without the familiar copyright notice the law then
required. Additionally, some content protected by copyright law may be usable under the
"fair use" doctrine, which sometimes permits limited use of excerpts from
copyrighted works without the need to obtain permission from the copyright owner. These
exceptions, however, are not likely to be of much value. For example, while Bram
Stoker’s novel Dracula may be in the public domain, Francis Ford Coppola’s film
version is not. A developer would be ill-advised not to seek permission from the copyright
owner before incorporating a clip from the film in its product. Similarly, the fair use
doctrine is an amorphous legal principle that is applied on a case-by-case basis and is
argued as a defense to an allegation of copyright infringement. A defendant in an
infringement action has a substantial burden of proof if the excerpted material claimed to
be a fair use is used in a commercial work sold for profit.
Trademark Law
While copyright issues might dominate a
multimedia developer’s legal concerns, the trademark rights of third party content
owners must also be assessed. The U.S. Patent and Trademark Office defines a trademark as
a word, phrase, symbol or design, or combination of any of them, which identifies and
distinguishes one source of goods or services from another. Unauthorized use of
another’s trademark, or use of a trademark confusingly similar to another’s
mark, can constitute infringement and subject the developer to monetary damages and
injunctive relief.
For example, assume a developer wishes to
use the character Simba, the protagonist in Disney’s The Lion King, in a multimedia
work about the living habits of lions in the wild. Unless a usage license is obtained,
this would not only infringe the copyright in the character’s illustrated design, but
the trademark rights in its name as used in connection with marketing and promoting the
film and ancillary products. Further, the developer might face additional liability under
unfair competition law for falsely implying that Disney had endorsed its product.
Publicity Rights
An individual has the right to control
the commercial use of his or her name, signature, voice, likeness and other personal
characteristics. Any or all of these characteristics can have significant economic value,
especially, for example, if one used to play basketball for the Chicago Bulls and has
scored 63 points in one game. Unauthorized use in a multimedia work of any protectable
aspect of a celebrity’s image can give rise to liability for injunctive relief and
monetary damages. In most states, the right of publicity descends to one’s heirs.
Accordingly, even if a developer obtains permission from the copyright owner to
incorporate into its multimedia work a film clip of Babe Ruth’s 714th home run,
Ruth’s heirs might have separately enforceable rights of publicity in the use of his
image. The developer would need to obtain a release to avoid liability.
Privacy Rights
The right of privacy is related to the
right of publicity except that privacy rights do not depend on their owner’s
commercial activities. The right of privacy is essentially the right to be left alone. One
commits the tort of invasion of privacy by doing any of the following: (i) appropriating
someone’s name or likeness for gain; (ii) intruding on another’s physical
solitude or seclusion; (iii) publicly disclosing private or embarrassing information, even
if true; or (iv) engaging in publicity that places an individual in a false light.
Developers need to be aware of privacy
rights any time a multimedia work uses a reference to any specific individual or
incorporates an individual’s image. For example, a developer’s use in its
product of a photograph of a person, even if permission has been obtained from the
photo’s copyright owner, can result in liability for privacy right violations unless
permission from the individual depicted is obtained.
Legal Due Diligence
Determining who may have rights in the
various forms of third party content to be included in a multimedia work requires thorough
legal analysis. Obtaining the necessary licenses and releases from the identified parties
is a time-consuming but essential step the developer must take to minimize its legal
liability.
(Recommended further reading: The
Software Publishers Association Legal Guide to Multimedia by Thomas J. Smedinghoff,
Addison-Wesley 1994.
Attorney Eric Freibrun specializes in
Computer law and Intellectual Property protection, providing legal services to information
technology vendors and users. Tel.: 847-562-0099; Fax: 847-562-0033; E-mail: eric@freibrun.com.
Copyright © Eric S. Freibrun, Esq., Law Offices of Eric S. Freibrun, Ltd. All rights
reserved.
