A brief guide for citizen journalists and bloggers

Target audience: Journalists, bloggers, nonprofits, cause organizations, NGOs, general public.

Guest post by Mitch Ratcliffe
RatcliffeBlog

There is much that bloggers can learn from journalists, who have learned how to cause the most trouble possible without landing in jail over the course of centuries. I highly recommend you pick up a copy of The Associated Press Stylebook and Briefing on Media Law ($13 at Amazon.com, which is the essential text for many journalists.

In addition, here’s a good source for students and other beginners.

If you want to go deep and learn a lot, read this piece from the Massachusetts Bar Association’s Journalists’ Handbook.

It’s worth understanding this stuff even if you don’t want to be a journalist, because anyone can be sued for libel, slander or defamation.

The first thing to understand about all subjects relating to journalists’ privileges is that they are different everywhere. There is no international standard set of laws, though journalistic professional societies have pressed for these kinds of uniform expectations. Most of what I’ll lay out here relates to the United States, where the press enjoy the most liberal protections available. In Canada, for example, there is no presumption that a journalist can protect their source. In much of Europe, the subjects of photographs retain far greater control of pictures through their moral rights (PDF), or “droit moral,” which provides both the photographer and the subject protection from the unauthorized reuse of the image in whole or in part — juxtaposing the image of a person into an advertisement, for instance, which is common in digital media is prohibited without their permission.

Elements of defamation

Defamation, slander and libel are the same thing, essentially, but each is defined based on the way a false statement about a person is conveyed. According to ExpertLaw.com’s entry on Defamation, Libel and Slander Law, the general principle behind all three must include the following elements:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

In the context of defamation law, a statement is “published” when it is made to the third party. That term does not mean that the statement has to be in print.

Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.

Most jurisdictions also recognize “per se” defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:

• Attacks on a person’s professional character or standing;

• Allegations that an unmarried person is unchaste;

• Allegations that a person is infected with a sexually transmitted disease;

• Allegations that the person has committed a crime of moral turpitude.

Libel is committed when a statement that meets the standard above is published in a document, whether a newspaper, magazine, book or Web site. Bloggers need to keep this firmly in mind when writing about someone, especially someone who is not a public figure (we’ll get to that in a moment).

A slander is a spoken defamation, whether that act of speech is public and one-time or recorded and redistributed. Slander also includes defamation by gesture, which could include making a gesture that suggests professional incompetence or mental illness. Slander carries the additional burden for a plaintiff of having to prove that they suffered actual loss due to the false statement.

If you are webcasting, podcasting, producing digital video or otherwise using the Internet to convey information that may be construed to be slanderous, this is the branch of defamation law about which you need to be aware. RTNDA, the Association of Electronic Journalists, offers a deep resource on the use of many different kinds of information in a broadcast that deals with a variety of liabilities and ethical questions radio and television journalists face.

In all cases, the truth is an absolute defense against charges of libel, slander or defamation (except in totalitarian countries or those not under the rule of law, where a judge can rule arbitrarily in favor of a powerful person). If you are going to call someone “a crook” or “a philanderer,” for example, be sure that you can prove they are a criminal or that they are stepping out on their spouse or carrying on multiple affairs simultaneously. Be ready for challenges to your proof, so don’t take for granted that one item of proof is sufficient.

But the truth is a relative thing, because public figures are the subject of varied opinions which the writer or producer is largely convinced. Public figures have to prove that the writer or speaker willfully ignored the truth or acted with flagrant disregard to the truth. And that is hard to prove. In the case of Dan Rather’s broadcast accusing President Bush of having avoided his National Guard service based on documents it failed to vet completely, the fact that it involved a source’s documents insulated CBS from charges of slander and libel (since they both broadcast and published articles on the cbs.com Web site).

Fox News has mastered the practice of deflecting an accusation by attribution, as in the phrase “people say…” or “according to sources” before leveling an untrue or highly opinionated statement. This is not a defense against libel or slander if the criteria described above are met. The burden for a journalist would then fall to the question of whether a source really made the accusation. And this is where the issue of confidentiality comes in.

Confidentiality

The confidentiality of sources involves protections that are somewhat mythical. In many jurisdictions, including the United States, there is no guarantee that a journalist can protect her sources. It’s not in the U.S. Constitution, but has been interpreted to be a journalist’s privilege in a number of state and federal cases. Shield laws have been passed in many cities and states, but these do not protect someone publishing on the Web, who may be indicted in another jurisdiction that has no such laws.

Confidentiality is grossly abused these days, in my humble opinion. It is used by government and corporate officials who should be on the record when they launch test balloons, make attacks on opponents and much else. It is also just plain lazy on many journalists’ part, because they should use a background statement to delve into the truth in order to get the facts on the record. But in the race to make a scoop — and, unfortunately, many journalists just think being first, rather than being complete and accurate, is paramount — solid sourcing often goes out the window.

Sources can sue you for libel or slander, as well, if they dispute what words you put in their mouths. This is why a journalist’s notes are so terribly important. In one case, a journalist whose source disputed a phrase lost the case because the words were in his notebook but not in quotes. A journalist learns to annotate carefully because of these kinds of realities.

Woodward and Bernstein of the Washington Post made a historically important and correct decision to protect the identity of a senior Nixon Administration official who guided them in their reporting of Watergate: Deep Throat. In May 2005, a former top FBI official named Mark Felt went public in Vanity Fair and acknowledged he was Deep Throat, but Woodward and Bernstein and their editors never revealed their source.

If the source has something to lose and can demonstrate it is materially important to them, then confidentiality may be necessary. If confidentiality is a convenience for the source, you’re better off doing more footwork yourself.

Attribution

This brings us to the issue of attribution and knowing when and why to go from being on the record with a source. Always begin a conversation by identifying yourself as a journalist (or a blogger writing “on the record”), if you want to enjoy any of the protections normally accorded to a journalist; begin and stay on the record until it becomes necessary to go off the record.

After “on the record,” which means you can write or broadcast anything said in the conversation, comes terms such as “on background,” “off the record” and their many hues. In a background conversation, you can write down what is being said but cannot attribute it directly to the source — they become generally identifiable to the reader as “a source in the Defense Department” or “a senior manager at Example Corp.” Remember that background information still needs to be confirmed elsewhere, so don’t be afraid to take the conversation back on the record to try to get the information in an attributed quote; background conversations are a matter of convenience for the source and are increasingly given by news organizations only with a compelling reason.

We’re talking here about how you handle relationships with people. We all know that there are times and circumstances that demand we protect confidentiality. Sometimes a source is giving you information that will get the person who really needs to be on the record to speak, because you come to them with information that, once they know you have it, they have to address on the record. This has worked for me with corporations, two White House administrations and a variety of other situations. What I want to emphasize is that a background quote or an off-the-record or confidential source does not make a publishable story in all but the most extreme cases. Can you prevent a catastrophe with an off-the-record quote? Publish! If it’s a matter of getting a scoop, do more legwork.

That’s it in a nutshell, the beginning of a lifetime of exploration and growing subtlety if you want to jump into the journalist’s role in society.

Related

• See other Socialbrite articles on law and citizen media

The post How to prevent against online libel and defamation appeared first on Socialbrite.

We’re happy to launch today with the news that our lead developer, Esteban Panzeri (above), is releasing a new WordPress plug-in to the WordPress community. It’s called Creative Commons Reloaded, and it lets individual blogs or group blogs assign Creative Commons licenses on a post-by-post basis.

That’s especially useful at sites like Socialbrite, where some of us (me, Beth, Ken) release our works under a CC Attribution license, while others (Amy, John, Katrin) use a CC Attribution Noncommercial Share-Alike license. Creative Commons lets you fine-tune your copyright, allowing others to reuse it as you specify.

I asked Esteban, a tech guru/analyst at Lenovo in Buenos Aires, why he developed the plug-in on his own time. “I think the old copyright model is outdated,” he said. “It does not fit the digital era. I’m convinced that it strangles creativity and it is bad for business. Creative Commons is a good step in the right direction. With so many excellent blogs out there, I thought it would be a nice way to help all those authors get a simple way to license their work. That and ‘giving back to the community’ that has helped me achieve so much.”

He cited Michael Geist’s recent post pointing to a new Harvard Business Chool working paper that suggests weaker copyright protection has benefited society.

Esteban — who happens to be the most capable programmer I’ve ever worked with (he Twitters in English here and in Spanish here) — was quick to credit Nathan Yergler (whom I worked with four years ago when he developed the original CC Uploader app for Ourmedia), who created the original WordPress plug-in, WpLicense, which applies to an entire site and which CC Reloaded is built upon.

Some details about the plug-in:

• Esteban is aiming to post it on the WordPress.org plug-in directory on July 6. It’s already fully functional on this blog (see below) and he’s now working on the documentation.

• On your Add New Post page, you’ll see a “Creative Commons Licensing” area that lets you check boxes sayng whether you want to allow others to remix your work, to allow or prohibit commercial uses and to require Share-Alike usage. You can also choose a jurisdiction for your license if you’d like.

• You can customize the look as you’d like. We chose a brighter Creative Commons logo, and styled it with a top border and tinted background by tweaking the CSS.

Thanks, Esteban, nice to see that your development work on Socialbrite is already paying dividends!

Update:

• See Socialbrite developer releases CC plug-in

• You can find the plug-in here: WP License Reloaded

The post Socialbrite releases Creative Commons plug-in appeared first on Socialbrite.

Guest post by Peter Jaszi
Professor of Law, Washington College of Law, American University

The answers to some of filmmakers’ most common clearance questions don’t really lie in the realm of “fair use” at all, but fall under the heading of “free use.” Some examples:

• Buildings that can be seen from public areas can be filmed for any purpose. Although there has been copyright in architectural works in the United States since 1990, the U.S. Copyright Act includes an exemption for filming. It doesn’t matter whether the building is the subject of the film or an incidental background.
• Federal government works enjoy no copyright protection whatsoever, whether they are the words of federal government employees or footage taken by camerapeople in civilian or military service. The purpose for which you use the material – as well as the source from which you obtain it – are irrelevant from a copyright perspective.
• Public domain works (such as 19th century paintings or medieval manuscripts) in museums or private collections are free for use as well, if you have access to a reproduction. Many institutions claim copyright in their own photographs of old objects in their collections. But if you have a different source, you’re free to proceed, without a license from the collection.
• For most documentary projects, filmmakers don’t have to be concerned about the so-called “right of publicity” that exists under some state laws. The cases (and sometimes the statutes themselves) make it clear that the right bars only the commercial exploitation of celebrities’ “persona,” and First Amendment-protected expressive uses are specifically exempted.
• In answer to a common (but not intellectual property-related) question, documentarians don’t need photo releases from individuals who are filmed in parks, streets or other public places where they have no expectation of privacy. If you single out an individual for special attention, you may a need a release.

Related

• Filmmakers’ best practices in fair use

• The rules around capturing public performances

• Guide to shooting photos in public

• Your rights as a photographer

The post What is off-limits to a documentary filmmaker? appeared first on Socialbrite.

Target audience: Cause organizations, nonprofits, NGOs, journalists, general public. This is part of our ongoing series designed to help nonprofits and other organizations learn how to use and create media.

When is it all right to take photos of strangers in public?

Society has wrestled with the question of street photography ever since the invention of the camera. In the United States, the general rule is that anything in plain view from a public area can be legally photographed, including buildings and facilities, people, signs, artwork and images.

In a recent case, photographer Philip-Lorca diCorcia set up strobe rigs on a New York City street corner and photographed people walking down the street. He won a lawsuit brought by an Orthodox Jew who objected to deCorcia’s publishing and selling in an art exhibition a photograph taken of him without his permission. (See Wikipedia for a more thorough discussion.)

In The Photographer’s Right: Your Rights and Remedies When Stopped or Confronted for Photography (see PDF), Oregon attorney Bert P. Krages II writes: “The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statue or ordinance, you are legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks.” Subjects that can “almost always be photographed lawfully from public places” include accident and fire scenes, children, celebrities, law enforcement officers and private homes.

Wired magazine agrees: “Snap away, shutterbug. As long as your subjects don’t have a “reasonable expectation of privacy” — meaning they’re not somewhere they’d never expect a camera to be — you’re on pretty solid ground. Even if you photograph them while they’re on private property, you’re in the clear — just make sure they’re in plain view and you’re not trespassing.”

Although some building owners have claimed a copyright on the appearance of their building, U.S. copyright law explicitly exempts the appearance of standing buildings from copyright protection.

Be aware, however, of social norms and cultural expectations. It’s not cool to go up to a stranger on a public bus, push a camera into her face, snap her photo and publish it to the world. Taking close-up photos of children at a public playground is generally frowned upon. Snapping photos on a public beach? It’s OK unless a local ordinance prevents it. Outside the United States, many countries, such as Japan and Canada, have a more restrictive set of laws and societal values.

Exceptions

There are a few exceptions to the general rule set out above.

Private property owners have the right to stop you from taking photos while on their premises, though they have no right to prohibit you from photographing their property from other locations.

Members of the public have limited expectations of privacy in public places. Krages writes: “Anyone can be photographed without their consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, and inside their homes.”

Shooting public performances and posting them online as a video, podcast or photo gallery is a more complicated proposition because artists own their own creations.

If you post pictures of strangers on your blog, be careful about how you identify them. Writing an accompanying caption that casts someone in a negative or “false light” can invite legal trouble.

Making money off of someone else’s image might get you into legal hot water. Case law is rife with people suing companies and photographers for appropriating their image for commercial gain. If you plan to profit in any way from someone’s image, obtain a model release form. Some people recommend using them even in noncommercial situations.

State statutes also come into play. California has a “right of publicity” law that gives people wide latitude over how their images may be used, though the law has never, to our knowledge, been tested in a noncommercial situation. And, no, you can’t take a photo of Lebron James on the NBA hardwood and use his image to hawk some product on your blog. Adds Wired: “Let’s say you’ve started a blog, and you take a snapshot of someone at a bus stop, then Photoshop it into a banner ad promoting your site. This implies the subject endorses your work, and she could file suit for publicity rights.” Publishing the original photo to Flickr or Photobucket, however, should be all right.

Sources: The Photographer’s Right; Wired magazine; Digital Photography Hacks

Related

• Your rights as a photographer

• The rules around capturing public performances

• Filmmakers’ best practices in fair use

• What is off-limits to a documentary filmmaker?

• Wikipedia on street photography

Please comment on, correct or expand upon this article.

The post Guide to shooting photos in public appeared first on Socialbrite.

The photographer’s right: A downloadable flyer explaining your rights when confronted for photography

Target audience: Cause organizations, nonprofits, NGOs, journalists, general public. This is part of our ongoing series designed to help nonprofits and other organizations learn how to use and create media.

The Photographer’s Right is a one-page printout on what the rights of photographers are when shooting in public places. It is loosely based on the Bust Card and the Know Your Rights pamphlet that was once available on the ACLU website. It may be downloaded and printed out using Adobe Acrobat Reader.

You may make copies and carry them your wallet, pocket, or camera bag to give you quick access to your rights and obligations concerning confrontations over photography. You may distribute the guide to others, provided that such distribution is not done for commercial gain and credit is given to the author, Bert Krages 2nd, who is an attorney.

Download PDF

A stand for photographers’ rights

The right to take photographs in the United States is being challenged more than ever. People are being stopped, harassed, and even intimidated into handing over their personal property simply because they were taking photographs of subjects that made other people uncomfortable. Recent examples have included photographing industrial plants, bridges, buildings, trains, and bus stations. For the most part, attempts to restrict photography are based on misguided fears about the supposed dangers that unrestricted photography presents to society.

Ironically, unrestricted photography by private citizens has played an integral role in protecting the freedom, security, and well-being of all Americans. Photography in the United States has an established history of contributing to improvements in civil rights, curbing abusive child labor practices, and providing important information to crime investigators. Photography has not contributed to a decline in public safety or economic vitality in the United States. When people think back on the acts of domestic terrorism that have occurred over the last twenty years, none have depended on or even involved photography. Restrictions on photography would not have prevented any of these acts. Furthermore, the increase in people carrying small digital and cell phone cameras has resulted in the prevention of crimes and the apprehension of criminals.

As the flyer states, there are not very many legal restrictions on what can be photographed when in public view. Most attempts at restricting photography are done by lower-level security and law enforcement officials acting way beyond their authority. Note that neither the Patriot Act nor the Homeland Security Act have any provisions that restrict photography. Similarly, some businesses have a history of abusing the rights of photographers under the guise of protecting their trade secrets. These claims are almost always meritless because entities are required to keep trade secrets from public view if they want to protect them.

For more information

U.S. law:
• Legal Handbook for Photographers-The Rights and Liabilities of Making Images

Abroad:
• UK Photographers Rights
• NSW Australia Street Photography Legal Issues

Source: Bert P. Krages website

Please comment on, correct or expand upon this article.

Related

• Guide to shooting photos in public

• The rules around capturing public performances

• What is off-limits to a documentary filmmaker?

The post Your rights as a photographer appeared first on Socialbrite.

Fair use — the tradition that individuals may make use of copyrighted works for a range of purposes that are legal — is enshrined in Section 107 of the U.S. Copyright Act. Other countries have their own versions of fair use.

Many people mistakenly believe fair use gives them broad, indiscriminate leeway to appropriate copyright holders’ works. Fair use is somewhat limited in scope. But Lawrence Lessig, the author and Harvard law professor, makes the important point that free use covers much more terrain than fair use. So does Peter Jaszi, another noted academic. Fair use is limited to carveouts, or exceptions granted to certain classes of individuals, in the Copyright Act. Free use covers longtime traditions like taping television shows on your VCR.

Fenwick-West, a prestigious intellectual property law firm in San Francisco, wrote the following fair use guidelines for Ourmedia.org members. The same guidelines apply to anyone who uploads works to any public website.

Fair use guidelines

The best way you can avoid infringement is by obtaining proper permission from the copyright or trademark owner before using it in your work, even if you only use a small part of his or her material. Simply crediting a copyright or trademark owner whenever you use his or her material is not a substitute for obtaining permission. If you do not obtain permission and you are not sure if your work falls within the fair use guidelines outlined below, consider consulting an attorney or avoid using the material altogether.

Cyberspace law differs by jurisdiction and is developing rapidly. A reasonable fair use policy seeks to reflect U.S. and international intellectual property laws, but copyright is a rapidly evolving arena.

Copyrights

A copyright protects original works of authorship fixed in a tangible medium of expression, such as published and unpublished written, visual, and audio works. Examples of copyrighted material may include music, films, television programs, and photographs. Copyright laws usually do not protect, among other things, ideas, procedures, discoveries, and works in the public domain (i.e., standard calendars).

Be mindful, however, that many things commonly thought to be in the public domain are not, so you need to be very careful to do a little research before assuming that something is in the public domain. For example, just because someone posts something online does not mean that he or she is allowing anyone to use it for any purpose. A copyrighted work does not need to say that it is copyrighted, or have the copyright symbol © on it. The copyright owner has the right to copy or permit others to copy his or her material.

Copyright infringement occurs whenever someone uses rights reserved just for the copyright owner without proper permission from the owner. You could be guilty of infringement if you improperly use another’s copyrighted material, even if that use is unintentional.

If you live outside the United States, be aware of the copyright laws governing your jurisdiction. Many countries have ratified international agreements and are members of organizations that seek to protect copyright owners.

Copyright ‘fair use’

The “fair use” of another’s copyright material means that, depending on your particular situation, you can sometimes use a part of another’s copyrighted material in your own work without permission from the owner. You may fairly use another’s copyrighted material provided that your work essentially transforms the copyrighted material into something original and creative, such as a parody, satire, or political statement.

It is not automatically fair to use another’s copyrighted material for a noncommercial, educational, or private purpose, or to exercise your First Amendment rights. It is usually fair use to use just enough of another’s copyrighted material that is necessary to communicate your ideas.

Examples of actions that may infringe others’ copyrights include the following: attempting to make money from another’s copyrighted material; completely duplicating another’s copyrighted material; creating a new work comprised mostly of another’s copyrighted material; and paraphrasing another’s copyrighted material without permission and attribution.

Trademarks

A trademark is a distinctive sign that identifies particular goods or services as those made or supplied by a person or entity. The owner of a trademark possesses the license to use the mark. Examples of trademarks include the bulls-eye symbol for Target, and word marks like Xerox and Macintosh.

Trademark infringement occurs whenever someone uses rights reserved just for the trademark owner without the owner’s permission. You could be guilty of infringement if you improperly use another’s trademark, even if that use is unintentional.

If you live outside the United States, be aware of the trademark laws governing your jurisdiction. Many countries have ratified international agreements that seek to protect trademark owners.

Trademark ‘fair use’

The “fair use” of another’s trademark means that, depending on your particular situation, you can sometimes use another’s trademark in your own work without permission from the trademark owner. You may fairly use another’s trademark inconspicuously in your own work to identify that product or service, while avoiding the risk of misattributing your work to the trademark owner. Fair use often permits “fair comment” of another’s trademark, such as comparing your product to another’s in an advertisement. A work that incorporates another’s trademark in a genuine parody or satire is often fair use, so long as it is not a disguised attempt to compete with another’s products or services.

Examples of actions that may be infringement include altering another’s trademark or the product or service associated with it, or directly or indirectly making false claims about the trademark or product or service with that it is associated.

Copyright Act

Here is the wording of the U.S. Copyright Act with respect to fair use:

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Additional resources

• U.S. Copyright Office on fair use: Can I use someone else’s work? Can someone else use mine? (FAQ)

• Socialbrite’s law resources

• Center for Social Media’s Fair Use Project

• Stanford University: Copyright and fair use

• Documentary filmmakers’ statement of best practices in fair use

• Podcasting legal guide

• Wikipedia on fair use

• Wikipedia on copyright

• University of Cincinnati Libraries: Using Images FAQs

• Nolo law center: When Copying Is Okay: The “Fair Use” Rule

• Stanford University Library: Summaries of Fair Use Cases

• Creative Commons on remixing

Please comment on, correct or expand upon this article.

The post Fair use in the digital age appeared first on Socialbrite.

Drop down to see:
YouTube   Blip.tv   Ourmedia   Internet Archive   Yahoo Video   Revver   Google Video   Metacafe   DoGooder TV

Many organizations and users don’t give a second thought to the rights you forfeit over the use of your content when you post a video to a site like YouTube. Here’s a site-by-site breakdown of what you get — and give up — by consenting to the Terms of Service at some of the major video sites.

YouTube

YouTube’s TOS.

• Ownership/licensing: You own your work but grant YouTube wide rights to reuse it.
• Creative Commons licenses?: Not yet permitted. (Creative Commons explained.)
• Payment to producers?: No.
• Can you remove your work?: Yes.
• Can they sell or license your video?: Yes.
• Can they put ads on or around your video?: Yes.
• Share your data with third parties?: No, though users may need to opt out.
• Unsolicited emails?: No, though users may need to opt out.
• Bottom line: YouTube is the 800-lb. gorilla of video hosting sites. Most people are there to gain visibility rather than income for their works; it remains to be seen how they’ll react if their work is sold to a third party without compensation to them.

Blip.tv

Blip’s TOS.

• Ownership/licensing: You own your work but grant Blip rights to display and distribute it. “We claim distribution rights only for the purpose of delivering the service while giving the user as much control as possible,” CEO Mike Hudack says. For example, Blip makes the video available as an RSS feed, creates thumbnails and transcodes the video to Flash.
• CC licenses?: Yes.
• Payment to producers?: Blip gives video producers a 50-50 revenue split from ads (when users earn at least $25 per quarter).
• Can you remove your work?: Yes.
• Can they sell or license your video?: “Our interpretation of our TOS is that it allows us to syndicate the content, cross-post it and put it into RSS feeds, but that it doesn’t allow us to sell the content to third parties without the permission of the creator,” Hudack says.
• Can they put ads on or around your video?: Yes, on the site, but the creator can opt out of that and would have to opt in to allow ads to be inserted into the video.
• Share your data with third parties?: The site does not share user data with third parties except if it’s necessary to provide a service to the Blip user, in which case the site holds the third party to the same standards as Blip itself.
• Unsolicited emails?: The site never sends e-mail to users except in direct relation to an action they’ve taken, and they always have the opportunity for users to opt out of those e-mails.
• Bottom line: Blip is perhaps the best solution for video producers who want free, reliable hosting for their works in a community setting. See their mission and principles statement.

Ourmedia

Ourmedia’s TOS.

• Ownership/licensing: You own your work and must decide on a license when you upload it.
• Creative Commons licenses?: Yes. Ourmedia’s default license is a Creative Commons license, though members may choose from a wide palette of options.
• Payment to producers?: No.
• Can you remove your work?: Yes.
• Can they sell or license your video?: Ourmedia does not do this. The site is restricted by the license chosen by the member.
• Can they put ads on or around your video?: Yes. The site uses accompanying text ads.
• Share your data with third parties?: No.
• Unsolicited emails?: No.
• Bottom line: With the Internet Archive serving as its media repository, Ourmedia remains a creator-friendly options for grassroots media producers. (But decide for yourself.)

Internet Archive

Archive’s TOS.

• Ownership/licensing: You own your work and grant the Archive the right to display and preserve it.
• CC licenses?: Encouraged.
• Payment to producers?: No.
• Can you remove your work?: Yes.
• Can they sell or license your video?: The Archive does not do this.
• Can they put ads on or around your video?: The Archive does not do this.
• Share your data with third parties?: “The Collections are made available to researchers and may be … provided to third parties [such as libraries], for any use, without limitation.”
• Unsolicited emails?: Users consent to being contacted but the Archive has sent out no such surveys in the past two years.
• Bottom line: An artist-friendly repository that is more about long-term preservation than viewer-friendly video hosting.

Yahoo! Video

Yahoo! Video’s TOS and Additional Terms of Service.

• Ownership/licensing: You own your video but license to Yahoo! the right to use it in a wide variety of ways.
• CC licenses?: No. CC licenses are not supported and appear to be inoperable on the commercial site.
• Payment to producers?: None.
• Can you remove your work?: Yes. Yahoo has 14 days to take it down.
• Can they sell or license your video?: Yes.
• Can they put ads on or around your video?: Yes.
• Share your data with third parties?: Yes.
• Unsolicited emails?: Yahoo requires you to allow unsolicited emails, though in practice doesn’t spam you.
• Bottom line: With millions of viewers and a large community of producers, Yahoo! Video is a good option for those looking for greater visibility, but don’t be surprised if you see your video on partner sites as well.

Revver

Revver’s TOS (Member Agreement).

• Ownership/licensing: You own your own video and Revver distributes it with an ad attached.
• CC licenses?: Yes.
• Payment to producers?: Yes. Users earn 50 percent of revenue generated by ad on their video’s page.
• Can you remove your work?: Yes.
• Can they sell or license your video?: No, though the site could use it for promotional purposes.
• Can they put ads on or around your video?: Revver attaches an ad to the end of your video.
• Share your data with third parties?: No.
• Unsolicited emails?: Yes, but you can opt out of emails.
• Bottom line: Revver is one of the most popular choices for video producers who want to go beyond the hobby stage and earn money for their work.

Google Video

Google Video’s TOS.

• Ownership/licensing: You own your video but license to Google the right to use it in a wide variety of ways.
• CC licenses?: No. CC licenses are not supported and appear to be inoperable on the commercial site.
• Payment to producers?: Yes; Google takes 30 percent of revenues
• Can you remove your work?: Yes.
• Can they sell or license your video?: Yes.
• Can they put ads on or around your video?: Yes.
• Share your data with third parties?: Yes, under certain circumstances or with user consent.
• Unsolicited emails?: No.
• Bottom line: Google Video and sister site YouTube are good ways to get your video out there, assuming you don’t expect much in return.

Metacafe

Metacafe’s TOS.

• Ownership/licensing: You grant the site a non-exclusive license to use your work in a wide variety of ways.
• CC licenses?: The site’s TOS makes no mention of CC licenses. But spokesman Mark Day told TechSoup: “We recognize Creative Commons licenses. As far as whether we will post a video with a Creative Commons license, the licenses can all be a little different and sometimes complex. We review each application to Producer Rewards and determine what makes sense in each case.”
• Payment to producers?: Yes. Producer Rewards program pays poster $5 per every 1,000 video views — one of the site’s major attractions.
• Can you remove your work?: Yes, unless content has been sub-licensed through Producer Rewards program.
• Can they sell or license your video?: Only if user participates in Producer Rewards program.
• Can they put ads on or around your video?: The site uses advertising only sparingly.
• Share your data with third parties?: Not without user permission.
• Unsolicited emails?: Not in practice.
• Bottom line: Metacafe is attractive to video producers who want to earn income for popular, viral videos.

DoGooder TV

DoGooder TV’s TOS: Go to Dogooder.tv and click on Terms of Use.

• Ownership/licensing: Site is open only to nonprofits, which own their own work.
• CC licenses?: No. The site requires a non-exclusive license and the content owner can license the content elsewhere under a CC license.
• Payment to producers?: Allows nonprofits to add a link to their donation page to video.
• Can you remove your work?: Yes.
• Can they sell or license your video?: Yes, for the purpose of “getting the nonprofit’s message out to new people,” says a spokesman.
• Can they put ads on or around your video?: Unclear.
• Share your data with third parties?: Unclear.
• Unsolicited emails?: Unclear.
• Bottom line: A good, free hosting solution for nonprofit organizations.

Note: Since this article was published, Magnify.net is also worth your consideration as a producer-friendly hosting site.

Related

• Understanding Video-Sharing Sites’ Terms of Service
• TOS comparison chart

Brian Satterfield of Techsoup contributed to this article. Disclosure: J.D. Lasica was the co-founder of Ourmedia.

Updated Aug. 14, 2009. Please comment on, correct or expand upon this article.

Related

• Legal terms of video hosting services compared (advancing usability)

The post Comparing Terms of Service at video sites appeared first on Socialbrite.

Guest post by Matt May

ASCAP has updated its Internet licensing to reference podcasts — oh, excuse me, pod-casts. The move may have been intended to answer some questions as to the legality of using music in podcasts, but, as with the webcasting era, it left a lot of people scratching their heads. Is this all we need, just a $288 license to this agency, to be covered through the end of the year?

Well, there’s some bad news. The truth is that, no, that’s not everything. In fact, the landscape for music licensing is even more confusing than most people would imagine, and it at times consists of entities who may not even want to sell you a license. Here, I try to break them down. Know that I am not a lawyer, and as such am not going to know much more detail than is absolutely necessary.

Songwriters

ASCAP is essentially a middleman for songwriters’ royalties. Authors join ASCAP knowing they have agreements with others for capturing and redistributing royalties as they accrue from various sources (radio, TV, commercials, etc.).

But ASCAP is only one of these middlemen. BMI and SESAC are also in the same business, and they have their own licensing policies. In order to check compliance, you’ll need to verify that all of the music you’re playing is by artists that are ASCAP members — or, like radio stations do, license all of them. For the calendar year 2005, BMI wants $283 for what appears to be the same license as ASCAP’s, and SESAC wants $168.

So that $300 bill has turned into a $750 bill to license your music. The bad news for the non-profit podcaster is that you’re not done. Not by a long shot.

Content owners

You’ve paid the songwriters, which gives you the rights to the music being performed.

But that doesn’t give you the right to the performance of the music — that is, the stuff represented in bits or grooves or magnetic forces. Nor does it give you the right to make copies of it, but more on that later. Let’s talk to the people who own the recordings. Which is…

the record label, of course! You wouldn’t think that the artist would own their own recordings, would you? That would be silly. Record labels exist to extract the most revenue possible from the recordings they have made, and to that end, they don’t seem to publish their licensing terms, or be interested in offering blanket coverage for sound recordings.

I had originally thought this step is subsumed by the mechanical rights I mention below, but in the comments on my blog, Craig Patchett points to a SoundExchange licensing primer (now removed) that lists a “master use license” which you will need to negotiate with the content owner. That’s something you’ll have to seek out from each record label, and not only can they charge you whatever they can get, they may also see fit to refuse to license the track you’re seeking.

There is a statutory license that went into effect in 2002 for the purposes of webcasting. For .07¢ — that’s seven hundredths of a penny — per stream per performance, you can play what you like. (FYI: the minimum fee for 2005 is $500.) But podcasting isn’t webcasting: it’s a download, not a stream-based system. And since a download is copying an original, you need to pay the labels for the master use license, skip this step, and go straight to mechanical rights.

Mechanical rights

These rights, so named because of a history dating back to player piano scrolls, entitle you to make copies of music recordings. The Harry Fox Agency administers these licenses. Through the end of 2005, mechanical rights cost 8.5¢ for each track up to 5 minutes, or 1.65¢ for each track over 5 minutes in length. SongFile.com lets you buy as few as 500 of these at a time (that’s $42.50, to save you time on the calculator). Mind you, you’ll have to license each track separately, so if you’re making a music-oriented show, that’s $42.50 times every song you’re playing, minimum, per show.

What to do

And that’s most of it. Once you have paid the $750 minimum to the performing rights organizations, $42.50 per track to Harry Fox, and whatever is behind Door Number 3 to the labels, you’re covered, at least until more than 500 people download any given song. I am purposefully avoiding the discussion of other countries’ royalty systems, because I don’t know anything about any of them, and what I’ve written is probably already enough to make a few heads explode.

It is important to know this stuff now, to avoid a meltdown later. Should you decide not to go the licensing route, and your show becomes popular, you may be in for a rude awakening down the road. Remember the filesharing lawsuits? Of course you do. That’s just a publicity stunt compared to what people could be facing if they ignore these rights wholesale. All of these agencies sue infringers like it’s their job. Because it is. And the law is on their side.

I can hear it already: “But I’m a non-profit! I’m not making any money on this at all!” Yes, we know. But there’s no provision for that in the law. You’re broadcasting, as far as they and the law are concerned, and that means keep records, report playlists, and pay up.

What can you do about this? In the future, if podcasting catches on broadly, it’s going to be best to ask all of the owners of all of these rights to offer a license that reflects the reality of the situation: lots of people are making shows, and lots more are listening. Therefore, give us a licensing regime that doesn’t require a lawyer, an accountant, and a traffic department just to make a 21st-century mixtape.

The alternative to this is to separate yourself from the entire system. Creative Commons-licensed music explicitly waives the author’s right to the royalties I’ve mentioned here. A large number of artists are using Creative Commons licenses, either out of pure altruism, or cognizant of the fact that offering a defined set of rights to users means there are no questions for people like podcasters. In other words, Staccato is in the clear. And I’m keeping good track of the licenses I find, just to avoid a nasty surprise down the road. I’m not looking forward to what I expect will happen sometime in the future, but I expect to be ready in case it does.

Please comment on, correct or expand upon this article.

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