Brad Zylman | Digital Rights Management

Understanding Digital Rights Management

It seems like there is quite a bit of confusion out there on what can be used, copied, pulled down, jockeyed around, and posted with nary a thought on what is actually the right thing to do. I commonly see images purchased from stock houses get picked up and used in blogs and videos used without anyone checking the rights. Just because someone says "It's Royalty Free" does not mean "Free." So, in a slight effort to clear up some of these issues, I'm setting this page up to help. That's the spirit behind it!

Image Credit: Annie Spratt

What are the different types of Usage Rights?

There are a number of levels to usage rights, and it's not always easy to understand them, especially in videos or when things get posted to the web without implicit copyright. So let's see if we can sort it out without getting too deep into the swamp.

I have broken out the major areas that make sense to me, and it's similar to what other people have done as well, but I have sub-categories to help clarify the parts of each Licensing area. I see all these sub-categories as being important distinctions within each group. Below this index are the explanations for each one, in detail.

INDEX OF DIGITAL RIGHTS MANAGEMENT DIVISIONS

Free to Use
- Private Use/Non-Commercial only
- License Free
Creative Commons:
- Attribution (CC BY)
- Attribution-Share Alike (CC BY-SA)
- Attribution-No Derivatives (CC BY-ND)
- Attribution-Non Commercial (CC BY-NC)
- Attribution-Non Commercial-Share Alike (CC BY-NC-SA)
- Attribution-Non Commercial-No Derivatives (CC BY-NC-ND)
Public Domain and Equivalent License
Royalty-Free:
- Complete Buyout or No-Restrictions
- Usage Restricted
Rights Managed:
- Flat Fee
- One Time Use
- Limited Usage
- Use with Permission
Fair Use Doctrine:
- Academic Usage
- Reporting
- Social Commentary
- Open License / Open Source

Simple Right? Well, I hope to make it easy to understand. How are we gonna do this? The best way I know is by doing it together! We will pick them apart, one by one, so it's easy to digest.

Types of Digital Licenses by Category

Free to Use

Creative Commons

You might think this is the most simple one. Free means free, right? Well, not if your a big corporation and you decide to use a bunch of free content. Often this is listed as "Free to Use" or "License Free", but you might want to go to their License Information and read the fine print (Example). It often begs the question that if it's really free, then why didn't they just make it Public Domain?

License Free: This is the same as above. Take it and it's free to use. Sometimes this is called "Unlicensed" or "Free to Use". Tricky thing is that is often not really free in everything if you read the fine print.

Personal Use Only: You can use it for yourself to do cool stuff, but don't use it at work, or to make any money with it. This is often worded as a Non-Commercial License.

Public Domain

A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted "work." A CC license is used when an author wants to give other people the right to share, use, and build upon a work that they (the author) have created (Wikipedia, 2019).

As seen above, there are several types of Creative Commons Licenses but they are pretty easy to follow.

BY: This means that you can pick up the work and do with it whatever you want as long as you credit the original author. This means that you publically say it's by "Place Creators Name Here".

SA: You can pick up the author's work and reuse it as long as you post the same user rights as the original. SA stands for Share-Alike.

ND: This stands for No-Derivatives of the original work. You can pick it up but you are not allowed to change or modify it in any way. Basically, you can only make exact copies.

NC: Non-Commercial use. You can grab this and play with it all day long, but don't use it to make money in a commercial endeavor.

Finally, these can be mixed and matched in several ways in order to come just shy of a full copyright. Symbols of these types of rights look like the below:

A Public Domain License refers to all content that meets anyone or more of the following criteria:

Its copyright has expired and the original owners can no longer claim any rights to it.
The material was released into the Public Domain by the Author. The Creative Commons has a mark for this in addition to the many Public Domain symbols of CCØ.
If it was created by a government agency in the United States and is not classified.
The copyright has expired. In the United States, any work, anywhere in the world that was made before 1923 is now in the Public Domain.
The content does not rely on any creativity and is represented as factual data.

Public Domain content should say its been released to the Public Domain and may have one of these symbols:

Royalty-Free

Royalty-free (RF) material subject to copyright or other intellectual property rights may be used without the need to pay royalties or license fees for each use, per each copy or volume sold or some time period of use (Wikipedia, 2019). Royalty-Free stock photos are in many cases interpreted as free photos. This is not true. Royalty-Free means that the purchaser can use the photo multiple times on multiple projects with few restrictions without paying further royalties for said use.

Basically, you pay once to use the copyrighted materials in the way specified by the contract that you, your company, or a circumstance dictates. Pay ice and use it as much as you want as long as you're within the terms of the contract.

Most companies and people prefer to work this way because they can easily control costs and tell the client upfront how much they are paying for projects.

Complete Buyout: Buying the images out from an artist, photographer, or writer usually involves paying to use the content in any way the purchaser sees fit to use them. The contract will include who the "owner" of the materials will be at the completion of the due date. The purchaser now holds the ownership/license to use the "materials or assets" and can do with it whatever it wants. The creator of the materials relinquishes their ownership once payment has taken place. This is how many writers, photographers and artist work, and if you think about it, this is really how you work as well. You get paid to turn over your knowledge and creativity to the "company" and they now own your work.

Restrictions on Use (RF): Royalty-Free, but with some terms on its use. The overwhelming amount of RF purchases are handled this way. There can be any number of restrictions on the terms of use contract like: Can be used in print or digital but no broadcast; some forms of talent restrictions; expiration dates (when it can no longer be used anymore unless you renegotiate); the number of impressions (how many times it gets seen or clicked on, and all manner of stipulations. It only matters if you don't agree with the usage terms to purchase the assets for your or your client's use. Great examples of this are Getty Images and Shutterstock.

Icons by The Noun Project.

For More Information visit: creativecommons.org

Rights Managed

Rights Managed is a one-time charge for the use of a photo, and can be purchased as an exclusive or non-exclusive photo. If the user wants to use the image for additional projects, the image needs to be re-licensed and re-negotiated for the new use for the image. The Rights Managed agreement allows multiple copies of the image under one project, but new uses need to be renegotiated (Stockphotosecrets, 2019).

Example: You can use a Rights Managed photo for a magazine ad, but if you want to use it for a tie in webpage image, you will need to purchase a new licensing agreement that outlines the rights for digital use.

What makes a Rights Managed licensing agreement attractive is the option for exclusive or non-exclusive use. This is an additional copyright license that needs to be contractually set up. Both RF and RM copyright agreements are available through stock photography agencies.

Flat Fee: A one time, agreed-upon payment to use an asset according to the terms of a license. This can also cover a buyout of any materials to transfer ownership from an owner to a new owner (like buying a Picasso).

One Time Use: As mentioned above, a set fee to use a piece in a very specific way.

Limited Usage: This can refer to many things and can be easily confused with Royalty Free, but it usually refers to the number of impressions or "eyeballs" that can see the material. The contracts for this are usually written to expire or scale-up in costs if the viewers increase beyond the contract limit.

Use with Permission: The Artist/Owner has granted rights to the user to display or use the material(s). Museums are often granted these types of rights to display works that others actually own. Anyone can ask for permission to use someone else's work, but using it without asking or at least giving credit is stealing.

Fair Use

The Fair use icon is rarely used as no one really knows when their ideas might get picked up for some purpose, but nonetheless, here it is. For more information check out the Berkley Fair Use Information.

The foundations of the Fair Use Doctrine are in 19th-century case law, but they were eventually codified in the Copyright Act of 1976. The "Fair Use" doctrine is designed to be invoked in specific ways. It was created to help pick up copyrighted materials and use them for the purposes of education, scholarship, commentary, criticism, news reporting, and research.

Academic Use: In academic use, it allows teachers to make copies of materials under certain conditions for the education of students and the pursuit of factual research. It will allow certain pages(s) to be copied from books but not to copy an entire book for educational purposes.

Editorial or Reporting Use: For purposes of news reporting, criticism, and research, the original work can be used to site findings as a factual reference. The author will cite the original work with quotations and/or bibliography entries to do this properly. (Does that bring back bad school memories?)

Social Commentary: For the portrayal of social commentary, as long as it not stealing market share or adversely affecting the potential market, you would be OK. The less you use and the more you change it, the better of you will be. (Al Yankovic is a good example). One of the reasons the "Fair Use License" was created is to keep corporations from abusing their power, but not to allow people to steal their Intellectual Property. As long as your doing something beneficial and limiting your use to what is needed to make your point, you can avoid a lawsuit (probably). The bigger the fish, the more she likes to eat!

Open License: In certain circumstances, companies will offer an open license for third parties to utilize their copyrighted materials in order to increase the market potential or the amount of quality content that is on the market. A great example is the Open Gaming License, but these agreements usually only last for a finite period of time. It differs from a "Public Domain" or "Free Use" license. This is also called an "Open Source" License or Initiative too.

If your an advertising agency, entertainment company, or in the media spaces at all, tread very lightly here and make sure you know what you're doing before you decide that "Fair Use" applies.

Also, see the Fair Use Worksheet below if you're concerned...

What do these Marks Mean?

Trademarks, Service Marks and R balls

Trademark: A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. Some examples include brand names, slogans, and logos. Unlike patents and copyrights, trademarks do not expire after a set term of years. Trademark rights come from actual “use” under common law. A Trademark is registered with the United States Patent Office and Trademark Office.

Service mark: A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include brand names, slogans, and logos. It operates the same way as a trademark for the companies service identity.

Copyright: A copyright protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. The duration of copyright protection depends on several factors. For works created by an individual, protection lasts for the life of the author, plus 70 years. For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

Registered Trademark or Service mark: This little ® (R ball) means that the trademark or service mark has been registered with the United States Patent & Trademark Office (USPTO for short) and affords the owner additional rights under Patent and Trademark laws.

Copyleft: A form of licensing and can be used to maintain copyright conditions for works ranging from computer software, to documents, to art, to scientific discoveries and instruments in medicine. In general, copyright law is used by an author to prohibit recipients from reproducing, adapting, or distributing copies of their work. In contrast, under copyleft, an author must give every person who receives a copy of the work permission to reproduce, adapt, or distribute it, with the accompanying requirement that any resulting copies or adaptations are also bound by the same licensing terms. This is essentially the same licensing agreement at the CC-SA (Share-Alike) provision.

The above was largely taken from the U.S. Patent office

Searching on the Web

While the major categories of copyrights can seem complex to navigate, for the end-user, it really comes down to who owns it and can I use it the way I want to. When using stock art houses and your own work to finish your projects, it needs to be clear. It is often not the case as to what the usage rights really are when you using search engines to find images and specific image/video/wordsmithing results. The search engine won't tell you exactly what is going on. I would assume it's copyrighted work and dig into asking permission or looking at the website for licensing information. If you decide to use something as a place holder, make sure you reached out to ask permission and always credit the source of the original content.

Complicating Factors

It's very possible for one image or video to have multiple restrictions on its use. People in a shot (called talent) can have their own talent rights. I have seen images where one model had different usage rights vs. the other model in the same shot. You have to play to the lowest common denominator when using the shot.

Another very common example is in the video/movie world. Major studios go to great lengths to monetize their video content and they do so by documenting the rights management on every second of the movie. Have you ever considered that each second of a video can contain music, product placements, brand names, actors/talent, locations, and sound effects information? Each one of these can have its own usage restrictions and rights specific contracts. I have seen many examples of videos that could only be used in the digital space, with no broadcast rights, and the music rights expire in one year from "such-n-such" date.

Multiple channels of rights management are becoming more the norm than the exception as time marches on. Companies don't want to spend the extra cash to do complete buyouts and will push the content re-users to purchase additional rights, when and if they need to, to use the content.

Anything Else?

I am not positive that I captured everything "rights" in the digital world. There always seems to be something new going on, and I am constantly surprised by what evolves out of thin air. I found these little worksheets/flowcharts below and thought they were pretty cool, so I added them in here.

So after reading all that stuff up above, and your still not sure if you did something wrong, have a look at these infographics for some additional help and guidance into the Ethics of "Copy & Paste". I have included these under the doctrine of "Fair Use" since I am citing their sources and using them as factual information.

Rights Management Infographics

Click to Enlarge and Download