Content in Quarantine: Copyright Best Practices During a Pandemic

t a time when we are stuck at home, working or “working”
(or, sadly for many, not working) the tenet that content is king has never been
more relevant.  From Disney+ releasing
“Frozen II” and “Onward” early to help placate restless youngsters, to DreamWorks
releasing “Trolls World Tour” for “theatrical” in-house rental, to Instagram sensation
DJ D Nice offering his “Club Quarantine” and “Homeschool” IG parties and
Spotify playlists, there is something for everyone on one platform or another.  Musicians are even offering special
live-streamed performances from their homes (thank you Dave Grohl, Billy Joe
Armstrong, et al.).

While the Disney and DreamWorks releases were clearly
authorized corporate decisions, the world of quarantine content becomes murkier
when one turns their overly scrubbed fingers to the keyboard.  Of course, the lead singers of Foo Fighters
and Green Day, respectively, likely have the rights to publicly perform music
they wrote, and reports indicate that DJ D Nice made licensing deals to avoid
copyright claims stemming from his streaming discotheques.  But in the further corners of social media,
the always-gray field of copyright has spawned more than its usual fifty shades
in the time of COVID-19.  So, what about
musicians performing other artists’ songs? 
Fitness instructors on Instagram Live with their playlists thumping in
the background?  The Internet Archive[i]
offering its own “Emergency Library” of digital copies of books (a decision
decried by the Authors Guild and Association of American Publishers, but
claimed to be fair use by archive.org)? 
Or DJs who, unlike DJ D Nice, did not have permission to publicly
perform or remix the music featured during that IG virtual dance party?

At least in the latter case, some DJs and performers
streaming on Instagram Live have reported that they’ve had their streams cut
short by copyright infringement claims over use of musical content without
authorization.  Lesser-known and aspiring
artists (who, like many, are out of work at this time) are having their online
raves canceled mid-performance.  But at
the same time, artists whose content is being used may also be out of work and
may be incentivized, perhaps more than usual, to enforce their copyright rights
and preserve their dwindling income streams. 
This presents a sensitive nuance to an already delicate balance between
online content usage and rights enforcement. 

There is no timelier example of COVID-era copyright
enforcement than Richard Liebowitz, the infamous plaintiff’s lawyer behind more
than 2,000 copyright infringement lawsuits filed by photographers over the last
four years.  His business model – which
he characterizes as fighting for photographers’ rights, and much of the digital
media industry characterizes as “trolling” – has, like COVID-19, mutated to
adapt to its new circumstances.  It was
recently reported[ii]
that, despite quarantine and widespread isolation (or perhaps because of it),
Liebowitz’s filings have actually increased, with his firm filing 51 lawsuits
between mid-March and early April (39% of all copyright infringement lawsuits
filed since the World Health Organization declared a global pandemic).[iii]  Likewise, porn studio Strike 3 Holdings is
also keeping busy during the pandemic, having filed a more modest 11 new
lawsuits since mid-March.[iv]  The uptick in these types of cases is potentially
correlated to the increased use of content during quarantine and the reduced
number of opportunities for photographers and other content creators to earn a
living.  So, what’s a pandemic hermit to
do?

The short answer: the same thing you’d do in pre-COVID
life.  Even in these strange times of
social distancing and mandatory isolation, the same rules apply even when
unauthorized content use is undertaken for seemingly laudable reasons such as
alleviating boredom, distracting your kids, or entertaining your Instagram
followers.  For better or for worse, there
is no exception in the Copyright Act for what’s going on out there, so
vigilance in defense as well as enforcement is paramount.  For instance, the test for fair use set out
in section 107 of the Copyright Act of 1976 requires a lot more than
benevolence in alleviating boredom or even supplementing one’s income during
hard times to successfully fend off a claim of infringement.  One of the keys to establishing a viable fair
use defense is “transformative use” – use of existing content that adds new
expression, meaning, or message to the original underlying work.  Simply using the content as intended, even in
an unprecedented environment, almost certainly will not be considered
transformative.  As tempting as it may be
to utilize others’ content for a seemingly good cause, good intentions do not a
fair use make. 

Best practices for content usage remain largely
unchanged.  The first-tier best solution
is to use vetted licensed content (ideally pursuant to representations,
warranties, and indemnification from the licensor) or seek permission,
preferably in writing, directly from the copyright owner.  There are plenty of options out there for
many types of content.  Licensing
agencies like Getty Images, Shutterstock, Adobe, and Pond5 are stalwarts for
visual content.  Many book and journal publishers
are now offering resources[v]
for newly minted home teachers.  Creative
Commons licenses and use of public domain material are also viable options,
particularly for photographic content, although may be less useful for things
like popular music and are not always fool proof.  Music licensing is a unique beast that could
fill an entire treatise, but suffice it to say that several licenses may be
required depending on the nature of the use, including public performance
licenses from performing rights organizations like ASCAP, BMI, SESAC, and
Global Music Rights, “mechanical” licenses from music publishers and “master
use” licenses from labels when content is downloadable, and synchronization
licenses from publishers and record labels for music that is cued up with
accompanying video content.  It’s
certainly worth noting that some sites offer royalty-free and low-cost
licensable music, such as Freeplay Music, Audioblocks, and Free Music Archive,
without the added worry of the music licensing labyrinth.

Reliance on defenses like fair use should be a last resort,
and in such cases, it is always wise to seek advice from an experienced
copyright lawyer.  And, on the other side
of the equation, if you believe your content is being used in a way that
violates your copyright rights, platforms like YouTube and Instagram have DMCA
takedown forms for removal of infringing content, but recent developments in
the law require at least some consideration of whether the user has potential
defenses (such as fair use) before submitting a takedown notice.

As we stay vigilant against the virus that is causing so much havoc worldwide, we must also make sure that we stay within the bounds of the law and mitigate our legal risks as we mitigate our health risks.  While troubled times such as these call for cooperation, collaboration, forgiveness, and flexibility, absent content owners and users working together to reach mutually beneficial arms-length deals, or the creation of a collective effort to allow free use of IP like that of Open COVID Pledge[vi] for health-based patents and technology, the rules remain as they were even if the world outside doesn’t.   

This article appeared in the May 1^st issues of LAW360 Intellectual Property, LAW360 Media & Entertainment, and LAW360 Coronavirus.

[i]
“Announcing a National Emergency Library to Provide Digitized Books to Students
and the Public,” Internet Archive Blogs (Mar. 24, 2020), https://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/

[ii]
Bill Donahue, “During Pandemic, Prolific Copyright Lawyer Keeps Suing,” Law360
(Mar. 27, 2020), https://www.law360.com/ip/articles/1257593/during-pandemic-prolific-copyright-lawyer-keeps-suing?nl_pk=db11a53e-b04f-44a7-96e1-76824544133d&utm_source=newsletter&utm_medium=email&utm_campaign=ip

[iii] See id.

[iv] See id.

[v]
“What Publishers Are Doing to Help During the Coronavirus Pandemic,” Association
of American Publishers, https://publishers.org/aap-news/covid-19-response/

[vi]
Open Covid Pledge (Apr. 7, 2020), https://opencovidpledge.org/