When it comes to using someone else’s words and images for digital signage, it’s better to be safe than sorry.

By Tifanie Jodeh

As digital signage emerges further into the mainstream marketplace, content providers are finding it vital to retain value by displaying content that captures attention, educates, promotes, entertains, and most of all, generates revenue. Given all that’s riding on the words and images that play on a digital signage screen, it behooves content providers to deliver such content without tripping over copyright law.

It’s likely that almost everyone reading this article has taken a magazine to the scanner and made a copy of an image or article of interest. On the same level, it could be assumed that a select number of content providers may have incorporated a film clip or piece of music into a produced piece displayed to the public. The issue is whether such use was legal.

Understanding Fair Use
Copyright law is protective of works such as photographs, music compositions, films, sculptures, news articles and paintings. Under the Copyright Act, these forms of creative, expressive media are protected as any “original work of authorship fixed in any tangible medium of expression.”

Many content creators are confused about the fair use doctrine and whether they need permission to borrow from the owners of copyrighted works. “Fair use” allows conditions under which content creators can use material that’s copyrighted by someone else without paying royalties or needing to obtain a license. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship.

Such examples of uses include news, fair comment and criticism, parody, reporting, teaching, scholarship and research. Filmmakers, artists and writers benefit from the fact that the copyright law does not exactly specify how to apply fair use. Creative needs are considered and whether the use is “fair” according to a “rule of reason.”

Courts employ the four-part test set out in the Copyright Act and ask two key questions:

1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?
    
2. Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?

If the answer to both questions is “yes,” a court is likely to find a fair use.

For example, if a reporter quotes a paragraph from an article you wrote online and that reporter compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without the need to obtain your permission.

The following are some common questions with regard to usage of content:

• “What if the usage had been only to advertise the network?”
• “Can I use a segment from a music video or copy an excerpt from an article without obtaining permission?”
• “What if I’m planning on getting permission after the content is displayed?”
• “If I’m not making money from the display of the content, do I violate the copyright act?”

The answer to most of these questions is: It depends on the use of the content.

Be sure to keep in mind that fair use is a very fact-sensitive defense to a copyright claim. It’s sometimes difficult for producers, writers and content creators to determine beforehand whether a particular use is in fact a fair use. For this reason, it’s a good idea to seek out a license before engaging in a use that might be a “maybe” fair use.

Key Considerations
In conclusion, digital signage content providers, whether agencies or individuals, should consider the following before incorporating material into their content:

• Don’t assume you have permission to use copyrighted material. Be sure to get the permission in writing.
• If you didn’t create the content yourself, then assume that it’s copyrighted and you should obtain permission for its use.
• If you think you may need a license to use the content, then you probably do.
• Assume that you’ll have to negotiate license fees or obtain permission to use copyrighted material and prepare for those possible eventualities.
• Line up a second choice in the event that you do not obtain permission from your first choice.
• Expect to be required to provide a credit for the use of the copyrighted content (such as “Footage provided by XYZ Network”).
• If you’re in doubt that you need permission to use a certain clip, image, quote or song, then stay on the safe side and obtain permission. It also is advisable to retain an attorney to help you through this process.

For more information, the U.S. Copyright Office Web site offers a variety of guides, including “Copyright Basics”, as well as answers to “Frequently Asked Questions.” 

(DISCLAIMER: Readers should consult with a lawyer before solely relying on any information contained herein.)

Tifanie Jodeh is partner at MindFusion Law LLP, a Los Angeles-based law firm dedicated to corporate, business and entertainment affairs. You may contact her at Tifanie@MindFusionLaw.com. Jodeh and MindFusion Law partner Mychal Wilson will be leading the “Usage Rights Panel” during the full-day “Creating Compelling Content” conference taking place on Tuesday, Feb. 24, 2009, prior to the Digital Signage Expo at the Las Vegas Convention Center.