opinion

The Anatomy of Content Copyright

The Anatomy of Content Copyright

It can be surprising how many aspects of a video are covered by separate copyrights or other intellectual property (IP). Whether you are an established studio or fledgling clip artist, it’s important to understand the anatomy of the legally protectable elements that make up a porn video. It’s even more important to make sure you own them…

According to the letter of the law, copyright is a form of IP that exists in an “original” creative work “fixed in any tangible medium” (CD, video, etc.). Copyright vests in the author (i.e. creator) absent a contract otherwise, typically called a “work-for-hire” agreement. And, there can be many components of a single video that are independently copyrightable.

But let’s start at the beginning, shall we? The script, as in the words that the actors and actresses will speak in the film, is subject to copyright and the script writers own the copyright. It gets more complicated, though, when an actor changes a line during recording — guess what? Now, they might be an author of the script too!

The video recording itself is also subject to copyright. The videographer is an author in that aspect. Sounds simple right? Well, let’s make it complicated again, and bring in a separate video editor to edit the various scenes into a single movie. If the editor is using their own creative judgment without following instructions provided by another person, that editor may be an author as well.

Note that I’ve used the word “may” and “might” in the scenarios above because, like much of the law, outcomes depend on the exact facts of the circumstances of each case.

Musicians are authors of the music they create. The area of music rights is a complicated part of the law, in and of itself. Like a video, a song has many separate protectable elements. And when it comes to videos, the synchronization rights, or “sync rights,” to music are important. These are the rights to synchronize a musical piece to a video. If you are using a prerecorded piece for your film or clip, you’ll need to obtain sync rights. It might be difficult to get such rights to a mainstream song for a pornographic movie. In some cases, you may hire a musician or band to write and record music for your production. That musician (or team) still has full rights to that music, unless you get a written agreement transferring those rights….

So, you’ve got your video — now, how about the still-photos, and that all-important cover image? The photographer owns the copyright in any photos they take. A graphic designer and/or editor could share in that copyright, as well, when editing and adding graphics or text to an image.

So, if you are a studio or clip artist, get a work-for-hire agreement from every person who contributes to any creative aspect of the video or promo images — before they begin work. A work-for-hire agreement will vest copyright in the hiring party, rather than the author. If you miss that step, get a copyright transfer agreement afterward. Then, file for a copyright registration with the U.S. (or other country’s) Copyright Office to evidence your rights.

Another form of IP is trademark, which protects logos, slogans and other symbols used in “commerce.” Typically, the title of a single work (i.e. one movie) cannot be protected by trademark (or copyright, for that matter). However, a title of a series of works can be trademarked. Accordingly, if you are producing multiple movies or clips under a single series title, that series title can be protected by trademark. Apply for a trademark registration at the U.S. (or other) Patent and Trademark Office (USPTO) to prevent others from using a confusingly similar series name.

Related to intellectual property rights, but a different legal concept, are “publicity rights” of the actors and actresses that appear in a film. Publicity rights are the rights of an individual in their likeness (image), voice and name. In the U.S., the exact scope of these rights is subject to state law, so it can vary. In general though, the laws say that an individual gets to control the use of their image, voice and name for commercial endeavors. Therefore, you’ll need a model release agreement for purposes of the film or clip and any still-images. Get this from all actors, actresses, models and voice-overs, etc.

Whew! That’s a lot of different items that need to be considered when producing a video. The moral of this story is to get written agreements relating to copyright from everyone who makes a creative contribution (no matter how insignificant it may seem in some instances), as well as model releases where applicable. Get yourself or your company registrations for the respective copyrights, and trademark rights, if present. You’ll be happy you did in the long-run.

Disclaimer: The content of this article constitutes general information, and is not legal advice. If you would like legal advice from Maxine Lynn, an attorney-client relationship must be formed by signing a letter of engagement with her law firm. To inquire, visit Sextech.lawyer.

Maxine Lynn is an intellectual property (IP) attorney with the law firm of Keohane & D’Alessandro, PLLC, having offices in Albany, New York, USA. She focuses her practice on prosecution of patents for technology, trademarks for business brands and copyrights for creative materials. Through her company, Unzipped Media, Inc., she publishes the Unzipped: Sex, Tech & the Law blog at SexTechLaw.com and the Unzipped: The Business of Sex podcast at Businessof.sex.

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

profile

VerifyMy Seeks to Provide Frictionless Online Safety, Compliance Solutions

Before founding VerifyMy, Ryan Shaw was simply looking for an age verification solution for his previous business. The ones he found, however, were too expensive, too difficult to integrate with, or failed to take into account the needs of either the businesses implementing them or the end users who would be required to interact with them.

Alejandro Freixes ·
opinion

How Adult Website Operators Can Cash in on the 'Interchange' Class Action

The Payment Card Interchange Fee Settlement resulted from a landmark antitrust lawsuit involving Visa, Mastercard and several major banks. The case centered around the interchange fees charged to merchants for processing credit and debit card transactions. These fees are set by card networks and are paid by merchants to the banks that issue the cards.

Jonathan Corona ·
opinion

It's Time to Rock the Vote and Make Your Voice Heard

When I worked to defeat California’s Proposition 60 in 2016, our opposition campaign was outspent nearly 10 to 1. Nevertheless, our community came together and garnered enough support and awareness to defeat that harmful, misguided piece of proposed legislation — by more than a million votes.

Siouxsie Q ·
opinion

Staying Compliant to Avoid the Takedown Shakedown

Dealing with complaints is an everyday part of doing business — and a crucial one, since not dealing with them properly can haunt your business in multiple ways. Card brand regulations require every merchant doing business online to have in place a complaint process for reporting content that may be illegal or that violates the card brand rules.

Cathy Beardsley ·
profile

WIA Profile: Patricia Ucros

Born in Bogota, Colombia, Ucros graduated from college with a degree in education. She spent three years teaching third grade, which she enjoyed a lot, before heeding her father’s advice and moving to South Florida.

Women In Adult ·
opinion

Creating Payment Redundancies to Maximize Payout Uptime

During the global CrowdStrike outage that took place toward the end of July, a flawed software update brought air travel and electronic commerce to a grinding halt worldwide. This dramatically underscores the importance of having a backup plan in place for critical infrastructure.

Jonathan Corona ·
opinion

The Need for Minimal Friction in Age Verification Technology

In the adult sector, robust age assurance, comprised of age verification and age estimation methods, is critical to ensuring legal compliance with ever-evolving regulations, safeguarding minors from inappropriate content and protecting the privacy of adults wishing to view adult content.

Gavin Worrall ·
opinion

Account-to-Account Payments: The New Banking Disruptor?

So much of our industry relies upon Visa and Mastercard to support consumer payments — and with that reliance comes increased scrutiny by both brands. From a compliance perspective, the bar keeps getting raised until it feels like we end up spending half our time making sure we are compliant rather than growing our business.

Cathy Beardsley ·
profile

WIA Profile: Samantha Beatrice

Beatrice credits the sex positivity of Montreal for ultimately inspiring her to pursue work in adult entertainment. She had many friends working in the industry, from sex workers to production teams, so it felt like a natural fit and offered an opportunity to apply her marketing and social media savvy to support people she truly believes in and wants to see succeed.

Women In Adult ·
opinion

Understanding the Latest Server Processors

Over the last decade, we mostly stopped talking about CPU performance. Recently, however, there has been a seismic and exciting change in the CPU landscape, due to innovation by a chip company called Advanced Micro Devices (AMD).

Brad Mitchell ·
Show More