[Tim Wilson]

[Bob Zelin] “You MUST have a plan. You have no idea of how massive NAB is, and how overwhelming the show is.”

Even if you have been many times, there are DRAMATIC reorganizations. Right inside the front door of the South Hall, which used to be Avid (center) and Apple (right), is now Grass Valley and Blackmagic.

Avid is at the front of the second floor, where Panasonic used to be, but all the cameras are now in the Central Hall.

I could go on and on, but the point is, no matter how experienced with NAB you are, take nothing for granted this year.

[Tim Wilson]

And not to dismiss Sears, especially to folks in Chicago, but the notion that they might steal your idea and execute it better than the client who DOES buy this same pitch from you — dude, it’s Sears. Not gonna happen.

[Tim Wilson]

I am shocked that anybody is surprised by this. I get why an under-educated reporter would be surprised, I get why an overworked editor wouldn’t actually read the article, but you folks?

A refresher:

• Ideas are free for the taking.
• Ideas may not be copyrighted.
• Ideas may not be trademarked.
• As soon as you pitch anybody anything, they can do whatever they want with it.
• Don’t want someone to steal your idea? Don’t tell them.

I also found it hilarious that anybody objects to Sears wanting to keep your pitch materials. I doubt that even one of you has ever said, “I didn’t get the job, so give me back my DVD.” You make the pitch, leave your portfolio, and hope for the best.

This is not shocking, dismaying, or in any way unusual. That Sears is TELLING you, rather than PRETENDING to be your pal, is the only unusual part of the story, and is to be commended.

I don’t mean to sound cynical or condescending, but no kidding. Don’t want someone to steal your idea? Don’t tell ’em.

[Tim Wilson]

[Bob Zelin] “even if someone was to respond with “are you smoking 12345″ – that is not really offensive”

I hope not! I use that word all the time in exactly that context.

Here’s the deal, though. We have thousands of new posts to monitor every day, and there’s no way to get to them all. We’ve identified the words that are most often used by miscreants, and flag them for evaluation by hand to make sure of their otherwise good intent.

The fact is that you’d be amazed at how many spam posts are still being made with invitations to download software that has been you-know-whatted. There’s no way that we can turn off the flag on this word without creating problems for ourselves that we’d have to chase all over the forums.

In the meantime, we hope that folks can either find another word, or do what I have – acknowledge that this is indeed the perfect word for some situations, and wait for the post to make its way through moderation. 🙂

Best,
Tim

[Tim Wilson]

They DO know that the COW exists, Bob. I can name you hundreds of hard-core, mainline broadcasters from the biggest networks, dozens of them engineers, that are regulars in the COW. Start by looking through the COW’s LinkedIn group. Your jaw will drop.

Those folks just tend not to come here to answer questions about transmitters. They come here to ASK questions about converting from tape to files, from SDI to fiber, about Blackmagic and AJA and Final Cut Pro, about digital encoding, about shared storage, and on and on. Change is happening even faster in broadcasting than it did in post, because the past 15 years in post are exploding into broadcast all at once, at the same time that companies like Grass Valley and Chyron have caught up and in some ways very much leapt past the most advanced post solutions.

That said, we’d love for someone to help our African member…but any lack of immediate reply has nothing to do with a lack of broadcasters in the COW. Quite the contrary. Our explosive growth over the past couple of years is very much because of them. Very true of digital cinema as well, and for many of the same reasons….but broadcasters have been driving it in a big, big way.

Dude, you should know better.

🙂

Yr pal,
Timmy

PS. We definitely have a few things up our sleeves for forums in 2011. Keep the feedback coming.

Tim Wilson
Associate Publisher, Editor-in-Chief
Creative COW Magazine

My Blog: “Is this thing on? Oh it’s on!”

Don’t forget to rate your favorite posts!

[Tim Wilson]

I’m speaking strictly from the perspective of documentarians. It’s how I made virtually my entire living for years. For the purposes of this discussion, though, I have no moral judgments to pass on the law. My intent was always to be a documentarian who didn’t lose his house by failing to perform due diligence on clearances.

My one and only point is that personality rights and copyrights are a snap compared to trademarks, and that all three of those add up to something different altogether when the person IS the trademark.

To shift the metaphor all the way over – imagine that you wanted to do a documentary about Coca Cola. You have the Coke bottle (the shape is trademarked), the ribbon (ditto), the big red badge (ditto) and all that good stuff in practically every frame. It’s all over the box, and in every banner and commercial, and all over your Facebook page.

Coca Cola will want to have a talk with you.

You might have to pay for some uses of these many Coca Cola trademarks (which include the name Coke in reference to the drink…but not the distillation of bituminous coal also known as coke), and not for other uses. I don’t know, but maybe in some circumstances they can argue that you have ZERO rights to ANY use of the trademarks. But they will want to talk to you.

Lovely folks. They’ll serve you Coke with a slice of lemon if you’d like.

Now, for Coca Cola, substitute Albert Einstein. Or the Wright Brothers, WC Fields, Maria Callas or Steve McQueen. Yes, they’re people. Yes, copyright comes into play for specific images. But these PEOPLE are for all practical purposes LOGOS. They are specific representations of a commercial interest.

The exponentially greater penalties for violating trademark are amply discussed in this forum, by people much smarter than I am, and easily searched. What hasn’t come up before is that in some cases, the person IS the logo, so to speak.

For our conversation about Ty Cobb, there are definitely SOME uses of the Tigers logo that are reserved to you under fair use, the news exception, or something similar. The balance tilts further from you, and more in favor of the rights holders, if Ty and his life as a ballplayer are the focus – his Tiger-ness and MLB-ness are essential to your project’s commercial value. And if Ty himself IS the trademark? You’re pretty much shut down without a LOT of phone calls, and probably a few checks.

BTW, I’m not saying that Ty is NOT a trademark. I don’t know. I did a quick search and didn’t find anything…but goodness gracious, don’t base any business decisions on what I don’t know!

Anyway, this is some idea why “PEOPLE as TRADEMARKS” is so complicated.

[Bob Cole] “Nobody has simply directly responded to the question in the original subject line, but I’m pretty sure that the answer is “forever.””

My typically long-winded answer was, “It depends.” You MIGHT be good to go today. But for a specific person – say, Maria Callas – the answer is probably closer to forever. Securing the rights to individual images isn’t that hard. Securing the rights to trademarks is harder. When the subject of your documentary IS a trademark, it’s much harder still. When that trademark is a person, it’s even harder.

Lots of other great points Bob…perhaps for another thread….and perhaps bringing in rules that apply in different jurisdictions, which adds yet another set of moving parts….

[Tim Wilson]

Sorry for the length of this, but we’re covering important ground that we’ve never touched in our 10 years of Creative COW. (BTW, did you catch that Creative COW turns 10 in April?)

First, to make sure that we’re staying on track, I’m not talking about fair use *in general.* This is about the use of a personage, complicated by the fact that many of these personages themselves are trademarked.

So, whether or not the image itself is in the public domain, or even owned entirely by you, the CONTENT of the image is still subject to restriction.

[Bob Cole] “I suspect (“suspect” – I don’t know for sure) that the fair use doctrine is a lot more powerful than you indicate….There are also very good websites about the fair use doctrine.”

Search “fair use” in the COW, and you’ll find a ton of such links, most of them from me.

An entirely apolitical, non-judgmental observation: one effect of courts being increasingly “pro business” is that the rights of corporate interests are expanding. What you thought of as fair use just a couple of years ago has certainly been curtailed, and in some cases, could be gone altogether.

On the flip side, as you point out, Bob, people are pushing back. I highly recommend looking into Creative Commons on this front.

But I can tell you this for sure: as every monkey with a camera and cheap software starts to make documentaries, and the rights to iconic people and their images are tied up….well, combine scarcity with demand, and you can see why licensing fees are going up. Rising prices incentivize additional historic images and personages being snapped up.

But in (very, very) general, once you invoke fair use as in, “it should be fair for me to use this in a project that will make me money,” it’s almost by definition NOT fair use anymore.

[Bob Cole] “there are many public domain images available (for example, in the Library of Congress Prints & Photographs section) for even the most famous and “trademarked” people, which would be useable in a fair use context.”

Again, you can use the images without paying for licensing, but the specific uses of them is still subject to the rights of the holder of that person’s trademark. That’s why I used the example of a picture of Elvis in your mom’s trunk in my first post. You don’t need anybody’s permission to use it…unless you use it commercially. In which case, fair use ends. Licensing of the PERSON kicks in.

A specific image of Elvis, yours. Elvis’s image, not yours.

Side note on Elvis: although Elvis Presley Enterprises owns the rights to Elvis’s persona, his images, etc., many specific instances of those are owned by people like Sony and MGM who got there first. To be specific, MGM owns the MOVIE “Viva Las Vegas,” and Sony owns the RECORDING of “Viva Las Vegas.” So if YOU want to use Viva Las Vegas, you have 3 phone calls to make…and even if Elvis himself (so to speak) wants in on the action, he has to make 2 phone calls.

In the real world, EPE, MGM and Sony all get along nicely, for obvious reasons….and will step in quickly if you try to sneak by, for equally obvious reasons.

That said, there’s a TON of free stuff available through the LoC. It’s your library. Use it. Great, great reminder Bob.

Here’s a link you can lose yourself for hours in, the Library’s picture collection. https://www.loc.gov/pictures/

[Bob Cole] “If you look at the Wikipedia entry for “Einstein tongue” there is a good discussion of one of the most famous images of Einstein.”

True enough, but at the end of the day, there’s no real debate: Corbis is the license holder of virtually every known picture of Einstein, and beyond those, his persona as well. Start by learning more at einstein.biz.

That’s DOT BIZ. And fwiw, this is the ONLY official website for Einstein. Dot com rolls over to dot biz. No kidding.

GreenLight Rights started as the rights management division of Corbis, and has been spun off as its own company since (I think) 2008 or so. Here are the other TRADEMARKED PEOPLE they manage:

Muhammad Ali
Steve McQueen
Bruce Lee
Johnny Cash
Andy Warhol
Mae West
Thomas Edison
The Wright Brothers
Buzz Aldrin
Maria Callas

This is from the FAQ, my emphasis added:

GreenLight exclusively represents the estates and people on our roster. Any commercial use of their name, likeness, quotations (i.e. their “persona”), trademarks or copyrights requires clearance and a license from GreenLight. Each request is evaluated on case-by-case basis to determine if it conflicts with existing licenses and/or is a good “fit” for the brand, and all requests are ultimately reviewed and approved (or disapproved) by the estate or property representative.

Note that quotations are managed too! And why not? The work that any of those folks did is easily covered under the most pro-artist interpretation of copyright law. (Aldrin is still alive of course.) There are some things that you can do with those words, and some things you can’t. Assume nothing.

So let’s start with the Wright Brothers. They donated 300 plates and 2 nitrate negatives to the Library, most of them taken by the brothers themselves. AWESOME images in the public domain.
https://www.loc.gov/pictures/collection/wri/

And yet, the Wright Brothers rights are managed by GreenLight. Many of the specific images you’d want to use are wrapped up, outside the Library of Congress. And their personas as a whole are wrapped up. When the Post Office issued Wright Brothers stamps, they had to secure the rights from GreenLight…to use images from the Library of Congress…for commercial purposes.

Your rights as a straight-up documentarian are indeed more fluid, but not if you put a picture of the Wright Brothers in a trailer, on a cover, a poster, a web banner — ANY commercial use, you need a license.

To put it another way with regard to copyright images of NON-trademarked people, you have some wiggle room…although not as much as you used to. In the specific case of documentary material related to TRADEMARKED PEOPLE, commercial use cancels out fair use.

See what I mean? This is copyright + trademark, cubed. Standard considerations of fair use just don’t apply to TRADEMARKED PEOPLE in the same way.

Let’s climb a little further up the tree. I mentioned that GreenLight is a Corbis company, so let me note a couple of collections that Corbis itself manages, including the 11 million piece Bettman Archive – everything in the Hermitage Museum in St. Petersburg, the National Gallery in London, all of the Smithsonian museums, Playboy and Ansel Adams – just to get started. A teeny tiny sample, some of which goes back hundreds of years.

Now, Corbis is privately owned by Bill Gates – a generous man who has already given away more money than anyone in the history of the world, and he’s nowhere near finished….and from what I hear, a pretty aggressive guy. I have no idea how active he is in picking Corbis’s fights, and as you can tell, I’m generally a fan of Bill’s… but my point is that once you start poking at the images and quotations of a historical person, you have NO IDEA whose nest you’re poking until you KNOW.

How geared up are you for a fight with Corbis over whether or not the image you got from the internet, an image of one of their paying clients, is in the public domain? Like the sign says, call before you dig, man.

Another example from Steve’s original post: Tyrus Raymond Cobb. Got this picture from the Library of Congress. It’s in the public domain. Awesome!

Well looky there, a Detroit Tigers logo. But of course – Cobb played 22 seasons for the Detroit Tigers. (What?!? 22 seasons?!?) Can’t make a Ty Cobb documentary without a Tigers logo. Can’t be done. So, this is from the official page for Detroit Tigers history, my emphasis added. https://mlb.mlb.com/det/history/index.jsp

The following are trademarks or service marks of Major League Baseball entities and may be used only with permission of Major League Baseball Properties, Inc. or the relevant Major League Baseball entity:…the names, nicknames, logos, uniform designs, color combinations, and slogans designating the Major League Baseball clubs and entities, and their respective mascots, events and exhibitions.

Shiny public domain image, check. Secured rights from MLB and “the relevant MLB entity?” Gotta make a few more phone calls.

This isn’t always just about evil corporate bastards trying to get in your way. WC Fields is repped by his 5 grandchildren. They WANT to keep the spotlight on him and his work, and have been at the front of the line pushing to make his writing, annotated scripts, letters, etc. available to libraries, researchers and more. Nobody will work harder for you than WC Fields Productions. I love these guys.

But as with the example of Elvis Presley Enterprises above, Universal still owns the WC Fields movies themselves, and like WC Fields Productions, has every interest in restricting your COMMERCIAL use of that work, including derivative uses.

Look, folks like the Fields family can be very accommodating if they get what you’re trying to do. But they don’t have the final word on everything. Universal does, and your life is going to be easier if you have the family pushing on your behalf, rather than if the family is standing WITH Universal, pushing AGAINST you.

ASK.

[Bob Cole] “imho, trademark and copyright laws has gone way too far in this country, and have unfairly limited the freedom of writers and filmmakers”

While I understand the original intent of limiting the lengths of copyrights to keep ideas free, I feel like we’ve gone far enough by not allowing *ideas* to be protected at all. Anyone can take your idea — ironically, lamented in this forum at least once a week. People ask how to protect their ideas, and the answer is, you can’t.

That’s a good thing. It’s how you wind up with more than one brand of car. But as Mark Twain observed in his testimony before Congress on copyright law (read it – both razor-sharp and hilarious), it’s outright theft to strip a man’s family of their rights to Grandpa’s work. He can pass down his house, but not his work? Laws SHOULD protect people’s rights. What else are they good for?

That’s copyright. As vigorously as anyone cares to disagree about copyright and my views on it, trademarks only expire when holders fail to protect them.

That is, trademark holders are REQUIRED to protect their trademarks, or lose them. So the question isn’t how much it’s worth to, say, Disney, to block your use of Walt’s picture in your low-budget documentary. Pennies. The only relevant question is, how much is EVERY use of Walt’s picture worth to DISNEY. Because that’s what’s at stake every single time for them — their ability to ever maintain any control over Walt’s picture, ever. Millions, if not billions. They. Will. Hunt. You. Down.

And again, this is not using the Disney logo or Mickey Mouse. Nobody thinks that that’s fair use. Right? But a picture of Walt kissing your mother when she was 6 years old that your grandpa took – well, Walt himself is trademarked. There are limits. Walk softly, because THEY have the big stick.

Walter Elias Disney is the most extreme example I could come up with, to make a rhetorical point. It’s not impossible for you to secure documentary rights. People do it every day. But you can’t take these considerations for granted, or say that you can get away with it because you’re a student (see further: file sharing), or that it’s for a good cause, or that you think it’s definitely fair use.

While I agree in principle that we should be holding the line on fair use, I also feel that we should also be the fiercest protectors of the rights of artists to exclusively control the rights to their work…and the rights of anyone to their personage.

The law aside, I don’t see that karma leaves much wiggle room on this one. Are you the guy who will ask as much permission as is reasonable, or the guy who will try to get away with as much as possible?

Your mileage will vary in spectacular fashion.

[Bob Cole] “And you’re safer listening to everything Tim says! Unfortunately.”

I have more than once been described in this very manner.

[Tim Wilson]

[Todd Terry] “The biography section of your nearest bookstore has shelves and shelves of volumes that will include the words “…an unauthorized biography” on the cover….It is, of course, easier to get sued by a living person, or by the estate of someone recently deceased”

Not always true. Speaking in super-broad strokes, there are 3 principles at work.

The first is “personality rights,” which basically stipulate that a person **or their estate** has certain specific rights over how their likeness can be used commercially. Even though he’s not a citizen, Putin has the right under US law to prevent his use as soap on a rope.

Now, again speaking generally, politicians including your mayor, actors including the star of your community theater, they’ve all yielded the right to privacy of their likeness — except not commercially. No soap on a rope.

This won’t apply for the body of your documentary – but can for use in trailers, boxes, etc., because at THAT point, the image has commercial value.

Note that this varies by jurisdiction, but in almost all of them, that right is indeed inheritable. Are there heirs? Is there an active estate? There will be money in play.

The second consideration is copyright for images that you can generally get your hands on. For the people you named, Steve, most images of the images of them are subject to copyright by Reuters, AP, Getty, etc.

There are no widely available pictures of, say, Teddy Roosevelt or Thomas Edison that aren’t subject to very strict commercial licensing, often by Getty Images. Likely for what you have in mind, the rates aren’t out of control, though. A few hundred to the low thousands for most, and Getty tends to be at the top of the range.

The third general consideration is trademark law, which starts to spread the net really really wide. For example, Getty owns the rights to Michaelangelo’s David, even if you took the picture yourself, so easy one-stop shopping for all your clearance needs — but the Empire State Building holds its own trademark. They typically only invoke this for overtly commercial use…but don’t try to create a documentary on the building itself, or use its image front and center in your trailer or cover.

In addition to general rights under personality law, and copyrights for images that you can usually lay your hands on, a number of dead celebrities are covered under *trademark* law, which, as long as the trademark holder keeps it alive, never, ever expires. Albert Einstein bequeathed rights to his image to the Hebrew Univerity of Jerusalem, which shares royalties with Princeton’s collection of Einstein’s papers. Albert had actually trademarked his image while alive, and very actively licensed it for commercial use to raise money for a number of causes that were very dear to him — so you can’t even assume that LIVING people aren’t subject to this too.

So, you want to do a fictionalized movie of Einstein? No problem. (I recommend IQ, starring Walter Matthau.) Write a book? No problem…as long as there are no pictures of him. So if you want to do a documentary that you get paid for, and it has pictures of Albert in them, you probably need to speak to Hebrew University.

Again, the amount you’ll pay will go through the roof if you want to use the image directly as part of sales or marketing, and often will not be given under ANY circumstances.

Elvis Presley Enterprises manages Elvis’s rights. They’re more flexible than you might think, but don’t even think about not asking first. Unless you find a photo in your mother’s scrapbook or something, every image of him that you can typically get your hands on is copyright AND trademarked.

And if a deceased celebrity is performing in an image, other trademarks may apply. You can guess that’s true for Elvis at the Hilton, but the Fillmores? Above the rights held by any of the performers, Bill Graham’s estate owns the rights to EVERY image taken there, even if the subject of photo is cleared for your use. Bill’s been dead a while, and the Fillmores have been closed since the 70s. Doesn’t matter.

That’s starting to veer back into the overtly commercial – of COURSE the Fillmores were trademarked – but it absolutely applies to individuals other than Einstein. Marilyn Monroe, Walt Disney, Mark Twain, WC Fields, Charlie Chaplin — personality rights apply in different degrees, copyright of most images, but trademark most DEFINITELY applies to ALL of those examples. Even if you’re cleared for copyright, you go through a different process if they wind up on the cover or the trailer.

Want to roll the dice on the Disney estate not tracking you down? Marilyn? I doubt that IBM holds any unique rights to Chaplin’s image, but you’re rolling the dice TWICE if you don’t know for sure.

(You may be too young to remember the IBM campaign with Chaplin’s Tramp character. I have no idea what they were thinking.)

Final quick notes:

–“Unauthorized” refers to the book being *written* without the involvement of the subject. Words yes, pictures no. Check even the cheesiest of them though – every image has been licensed.

–Following the Bill Graham example above, Ty Cobb’s image is one thing. Trademarks apply to his uniforms separately, held by MLB for sure, and maybe the team too.

–Saying you’re a student will NOT get you off the hook. Those outrageous file sharing penalties against students are being slashed, but only after massively expensive fights…but there are still serious penalties…and I’m not aware of any of those findings being overturned altogether.

There are indeed a buuuuunch of exceptions to all of this under fair use…say, as a student doing a project for **class** — but as discussed at extreme length in this forum, the concept of fair use gets pretty fuzzy once money changes hands, and vanishes once you’ve made ANY image of these people (or David, or the Empire State Building, etc) the center of your trailer, cover, commercial, whatever.

Not that you can’t get permission. You obviously can. People do every day, and often for no money. It’s just that you can’t make general assumptions, because there are precisely zero that apply. Other than the assumption that you have to tread lightly until you know where you’re stepping. That one applies.

As usual, your mileage will vary, but another general assumption: paying a lawyer and rights clearances is cheaper than buying a new house.

[Tim Wilson]

[Mark Suszko] “Really what I think you’re saying is you don’t want to work for a conventional job… so you have to invent the job you want. For that, look inwards to your own interests and passions.”

The best career development tool ever: yellow pad of paper. Has to be yellow.

Don’t start by thinking about a “job,” or jobs you’d like to have. Make a list of things you like to DO. Not “do for a living.” Just DO.

After you’ve made a raw list, start doodling. Make circles around the things that REALLY jump out. Cross out anything that doesn’t look as interesting as the others. Draw lines connecting things that might be related. Get really active with the piece of paper. The physical movement of your hand, and the visual feedback from the changes you make, really helps.

After THAT, start seeing how you can put that together into something that looks like a job. Maybe it won’t look like any job you’ve ever seen. But once you know what it is, you can start working your way toward it.

For the video-specific part of it, figure out the kind of video you’d like to make, and just start making it. You say you don’t mind working for no pay? Well, here’s your chance. See how far you can go on no budget, but also freed from a client or boss’s lack of imagination.

Then go back to the yellow pad of paper. Has to be yellow.

Tim Wilson
Associate Publisher, Editor-in-Chief
Creative COW Magazine

My Blog: “Is this thing on? Oh it’s on!”

Don’t forget to rate your favorite posts!

[Tim Wilson]

[Ronald Lindeboom] “(Sorry for the Star Trek 3 humor.) ;o)”

Yes, spoken in The Search for Spock, but a reprise from Spock’s speech at the end of The Wrath of Khan.

What we learn from all this is that Robin Curtis is no Kirstie Alley (aka Dick Sargent and Dick York), and that there will never be another Persis Khambatta.

And never another Nick!