BY:Jake Levy & Neil Rosini
This Q&A was originally published in the Winter 2017-2018 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Here are some examples showing why licenses must be read and understood.
Not all archive agreements are licenses. The Vanderbilt Television News Archive (tvnews.vanderbilt.edu) is a collection of television news broadcasts dating back to 1968. The Vanderbilt Archive functions as a library making loans of material on DVDs that must be returned to Vanderbilt University. The Vanderbilt Archive specifically does not license the material that it loans; making copies or using the material in a production must comply with copyright laws (including by being defensible as fair use, if applicable). For this reason, producers must be careful not to confuse receipt of a DVD from the Vanderbilt Archive with a license. And just as with a local library branch, late fees are charged if DVDs are not timely returned.
Creative Commons (“CC”) licenses require particular scrutiny because they do not always cover “commercial uses,” including Attribution Non-Commercial (BY-NC), and Attribution Non-Commercial NoDerivs (BY-NC-ND) licenses. As a producer finds it in the human-readable summary, this exclusion may seem irrelevant; an independent documentary usually isn’t being shown with ads or aiming at a mass-market. But as CC warns, the human-readable summary is “not a substitute” for the long-form license. There, non-commercial is defined as “not primarily intended for or directed towards commercial advantage or monetary compensation.” (See, e.g., https://creativecommons.org/licenses/by-nc/4.0/legalcode, relating to the Attribution-NonCommercial 4.0 International CC license.) Most producers are not nonprofits and hope to earn a living – perhaps even achieve a substantial revenue stream. CC advises producers “who are uncertain of whether their use is noncommercial should find a work to use that does unambiguously allow commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain) or ask the licensor for specific permission.” (See https://creativecommons.org/2009/09/14/defining-noncommercial-report-published/ .)
And what does “NoDerivs” mean in the BY-NC-ND license? It means that only uses in “Collections” are permitted in which each composite work is “included in its entirety in unmodified form along with one or more other contributions … assembled into a collective whole.” That rules out the use of clips and most every other use except an assemblage of items, like an anthology, with each presented unabridged. (See https://creativecommons.org/licenses/by-nc-nd/3.0/legalcode .)
The Prelinger Archives (Prelinger.com) allow free access to many (but not all) films in their collection on the Internet Archive site (Archive.org). Those films are believed to lie in the public domain, but the rights come with no warranties or indemnities (called a “quitclaim”), leaving open the possibility of a third party infringement claim with no backup from Prelinger. Many of the Prelinger clips, however, are made available at Getty Images, where a fee must be paid, but an indemnity against claims for copyright infringement comes with the license (and probably a higher-res copy, too.)