Trademark Infringement?

[J. Dan]

Our band is working (remotely) on a video and the member who is doing all of the editing and production showed us what he has so far. There were a lot of flashes of screenshots from news sites and I warned about trademark infringement. Do you know if it is good enough to photoshop out the logos of CNN, MSNBC, Fox News, etc and replace with fictitious entities or are we still at risk if any part of it is still a screen shot?

 

I see often in movies where they'll make up a fake entity where they make a logo making it obvious who they are intending you to think of. But on those it's all still made up from scratch.

[MAJUSCULE]

Yeah I would imagine footage of major news networks would trigger copyright vultures even if you blurred out the logos. Hard not to recognize those branded news stations and their anchors.

[J. Dan]

I see movies all the time where they very closely mimic a logo and make it something like DNN obviously to skirt paying them or else they would just make it CNN. I'm not as worried about that as I am about the rest of it being an actual screenshot. But I suppose we could edit all that as well. We already have other fictitious screens where they scrolling text at the bottom that would be a newsfeed is the lyrics of the song and a generic bar that says "breaking news" and stuff like that. But it would be a lot of work to make every single one of those flashes that tend to be only 10 frames each (29.97 fps) to purely fictitious.

[KuruPrionz]

This is a complicated issue, in large part because some corporations hire lethally efficient copyright and trademark protection warriors and others are far less dilegent.

Any or all will go after an opportunity if it makes it to higher levels.

 

At one point in life I found myself working at Kinko's and we would get faxed notifications from the Disney police and the Elvis police reminding us of the copyrights they held and what we could and could not copy.

The Disney police were rabid, frothing at the mouth. We did not mess with them, ever.

 

Where it gets complicated is figuring out who is who and what is what.

 

There is a possibility that repurposing new footage could be considered "artistic license" but it really doesn't matter if somebody decides to take you to court. The cost of defending yourself is not something anybody needs - except lawyers. They'll win either way.

 

Personally, I would urge that the band refrain from any potential liability snarl-ups, the rewards are not worth the risk.

You could shoot some cheesy footage and make a satire of known corporate entities and it might be more amusing if done with gusto. Perfectly legal if you get close but do not infringe.

 

That's what i would do, there's gotta be somebody in St Louis that is dying to be part of project like that.

[drawback]

Our band is working (remotely) on a video and the member who is doing all of the editing and production showed us what he has so far. There were a lot of flashes of screenshots from news sites and I warned about trademark infringement. Do you know if it is good enough to photoshop out the logos of CNN, MSNBC, Fox News, etc and replace with fictitious entities or are we still at risk if any part of it is still a screen shot?

 

I see often in movies where they'll make up a fake entity where they make a logo making it obvious who they are intending you to think of. But on those it's all still made up from scratch.

 

I"ve worked with ad reps who have asked me to 'take it into the photo shop' but that was a long time ago, before photoshop became a verb. I think to 'photoshop out' trademarks from copyright material is a more ethically serious issue than to use it verbatim without permission.

[ajstan]

I'm not a lawyer, but if I understand this article correctly, it appears your situation could be considered, "Fair Use". It seems like including an attribution of sources in a card at the end may help.

 

https://cmsimpact.org/code/code-best-practices-fair-use-online-video/

 

---

 

Excerpt 1:

 

In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:

 

⢠Did the unlicensed use 'transform' the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

⢠Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

 

Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner. If the answers to these two questions are 'yes,' a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.

 

Excerpt 2:

 

From the "Best Practices" Section

 

TWO: Using copyrighted material for illustration or example

 

Sometimes video makers quote copyrighted material (for instance, music, video, photographs, animation, text) not in order to comment upon it, but because it aptly illustrates an argument or a point. For example, clips from Hollywood films might be used to demonstrate changing American attitudes toward race; a succession of photos of the same celebrity may represent the stages in the star"s career; a news clip of a politician speaking may reinforce an assertion.

 

PRINCIPLE: This sort of quotation generally should be considered fair use and is widely recognized as such in other creative communities. For instance, writers in print media do not hesitate to use illustrative quotations of both words and images. The possibility that the quotes might entertain and engage an audience as well as illustrate a video maker"s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power precisely because they are popular. This kind of use is fair when it is important to the larger purpose of the work but also subordinate to it. It is fair when video makers are not presenting the quoted material for its original purpose but to harness it for a new one. This kind of use is, thus, creating new value.

 

LIMITATIONS: To the extent possible and appropriate, illustrative quotations should be drawn from a range of different sources; and each quotation (however many may be employed to create an overall pattern of illustrations) should be no longer than is necessary to achieve the intended effect. Properly attributing material, whether in the body of the text, in credits, or in associated material will often reduce the likelihood of complaints or legal action and may bolster a maker"s fair use claim.

 

---

 

Of course, right or wrong, none of this would stop lawyers from a news organization submitting a copyright or trademark infringement claim against you to YouTube or social media sites, which would be difficult to fight. In the meantime your video would be removed.

[RABid]

I would think that removing the logos but keeping the people and voices would make it worse. You could always film your own fake broadcasts.

[J. Dan]

Some good perspectives I hadn't considered. So I'm starting to hear that maybe it's better to just stick with undoctored shots if we wish to take our chances. The video intent is to flash imagery of what's going on in the world right now, so headlines intermixed with images of hospitals in Italy, etc. It lays the groundwork for the context of the song, which in and of itself doesn't rely on the imagery. The images are background and in the forefront is a chat window of people who are quarantined and the messages overlay with the song lyrics and, Zoom style, the windows of each band member playing their parts are there. So is it fair use? Is it critical? So many questions I guess. We are literally NOBODY, so I doubt it would show up on anybody's radar. We, with many thousands of streams around the world, have made $12 to split between the 6 of us. But if it were to take of, bare minimum is they could take it down relegating hours of hard work to nothing. Sky is the limit I guess in terms of how bad they could screw us if they really wanted. I can't show the video yet but I'm open to alternate suggestions based on what I've said. We already have many scenes of made up news feeds with the lyrics scrolling at the bottom and stuff like that. Our individual video shots have the "live" bar at the bottom. But I still think it's important from a global view standpoint to flash all the images of world reporting.

[J. Dan]

Song is New World Disorder and you can almost think of it like Tom Clancy novel or something, a secretive group using this to control us via media, social media, etc to establish power amidst a crisis. Cool concept we came up with almost a year ago. Not claiming that it is what is happening, but the current situation might make people identify with the concept a bit more now. The video is perfect because it's a clandestine group doing encrypted group chats online, in individual isolation, with the media flashing in the background.

[drawback]

Some good perspectives I hadn't considered. So I'm starting to hear that maybe it's better to just stick with undoctored shots if we wish to take our chances. The video intent is to flash imagery of what's going on in the world right now, so headlines intermixed with images of hospitals in Italy, etc. It lays the groundwork for the context of the song, which in and of itself doesn't rely on the imagery. The images are background and in the forefront is a chat window of people who are quarantined and the messages overlay with the song lyrics and, Zoom style, the windows of each band member playing their parts are there. So is it fair use? Is it critical? So many questions I guess. We are literally NOBODY, so I doubt it would show up on anybody's radar. We, with many thousands of streams around the world, have made $12 to split between the 6 of us. But if it were to take of, bare minimum is they could take it down relegating hours of hard work to nothing. Sky is the limit I guess in terms of how bad they could screw us if they really wanted. I can't show the video yet but I'm open to alternate suggestions based on what I've said. We already have many scenes of made up news feeds with the lyrics scrolling at the bottom and stuff like that. Our individual video shots have the "live" bar at the bottom. But I still think it's important from a global view standpoint to flash all the images of world reporting.

 

I (and RABid I'm assuming) was thinking what would probably happen if you just used the clips (disclaimer, disclaimer) is you'd get a C&D. If you actually took the time to erase trademarks off content, it would be fairly obvious you knew better.

[Docbop]

Wouldn't how you intend to use the video also come in to play. If they consider the video is for commercial use or advertizing would that be more of an issue than if just a free work of art?

 

I know with music you have to get clearance to record someone else song , I worked for a production company for awhile and had to help track down songwriters to get clearances. So maybe a similar clearance is required for video of commercial TV show?

[J. Dan]

After some discussion, I think he's going to go ahead and take the time to replace all the shots with completely fabricated shots using only royalty free images, fake text, and fake logos of made up news sources. That should take care of any issues. A bit more time consuming but I think it will have the same impact and alleviate any risk.

[J. Dan]

Wouldn't how you intend to use the video also come in to play. If they consider the video is for commercial use or advertizing would that be more of an issue than if just a free work of art?

 

I know with music you have to get clearance to record someone else song , I worked for a production company for awhile and had to help track down songwriters to get clearances. So maybe a similar clearance is required for video of commercial TV show?

 

This is a music video we are making for an original song that we wrote and recorded ourselves.

[KuruPrionz]

After some discussion, I think he's going to go ahead and take the time to replace all the shots with completely fabricated shots using only royalty free images, fake text, and fake logos of made up news sources. That should take care of any issues. A bit more time consuming but I think it will have the same impact and alleviate any risk.

 

 

That seems wise, then you can post without worry. If the story is told, you've made your point - and emerged unscathed.

[The Real MC]

Legal precedence has established that broadcast news is copyrighted material even if you obscure the visible logos, and has established any "samples" - audio or video or print or online - of copyrighted material MUST have clearance from the copyright owner(s).

 

Blocking out the logos will do you no good as it still qualifies as infringement, and they WILL find it. Expect to get a nastygram from the news outlet and expect to forfeit all monies earned from that song. If you put it on YT then it WILL get removed. No lawyer will defend your infringement unless you have clearance from the copyright owners.

 

There is a REASON why entertainment material uses their OWN faux news material.

[J. Dan]

I don't expect this to go anywhere in reality...we're just a local metal band...but better to do the right thing for 2 reasons....1) it's the RIGHT thing and 2) even if it just gets taken down, it would suck to have all the hard work down the drain for something that wasn't even that important anyway.

 

Ultimately all that's really needed is quick flashes of headlines and images getting the idea across. As it was, most of them were only up for 10 frames. Yes, 10 frames, at 29.97 frames per second. But it doesn't matter how fast when it comes to infringement. Easy enough to freeze it. But point being it shouldn't be to tough to mock up some images that look close enough to a typical news web site and create the same visual effect.

 

It's going on in the background and the focal point is a chat window front and center.

 

Thanks for all the feedback. I think I already knew the answer when I started this, but it helped me fully look at our options and communicate to the guy who's doing the production and editing. So again, thanks!

[bob_sd]

I'm an attorney by day (wanna be rockstar by night) and without expressing any specific opinion on the specific facts presented, and to paraphrase part of KuruPrionz's thoughts; whatever you do just make sure you are ready to defend your actions. In reality given the limited distribution of most content it's likely nothing will happen, however just remember you are playing with fire. You don't want anyone jacking your content right? and of course, if you have to ask the question, then you probably already know the answer...

[J. Dan]

I promise not to ask you for direct legal advice, LOL....and as stated we already decided to do the right thing.

 

I think the challenge in cases like this is just trying to figure out how it all works. For music, just go to HFA and pay the royalties...done. When it comes to stuff that is world events, things that could potentially be public domain or fair use, it gets a bit more sketchy, complicated by the fact that there is no clear easy path for the little guy to get permission (even paid) from somebody like a major news organization. I know they share stuff. They'll all use the same video from AP or Reuters and I'm sure they pay for it. But probably far more than would make sense to include in a local no name metal band's music video, lol.

[Docbop]

Why not help another artist with this project. Instead of using real news video I bet you could easily find a local up and coming graphic artist, comic book artist, or similar artist to create news-like art or maybe video you could splice in. So you still get the effect and some up and coming artist gets a end credit and something they can add to their portfolio. Art helping Art.

[J. Dan]

Well it's something we can do ourselves. There's no benefit to us to pay somebody to do what we can do. It would be like me suggest you hire another artist to play the keyboard parts on your studio recording just so that you can support another keyboard player. You wouldn't do that.