Author: Dr. Fodor Klaudia | 18th March 2020

What to do if you want to use someone else’s work? An overview of permissions and contracts

In my earlier articles, I described the sense of copyright protection, the scope of the protection, how long the protection lasts, and in my last article I summarized, what rights are granted to the author through copyright in Hungary. After we have looked into the magical box of copyright, let’s get back to the user side and see how the user can lawfully use someone else’s copyright work.

  • AUTHORS AND USERS
Users are often authors themselves. If you write a song and use parts of a previously existing song, if you shoot a YouTube video and want to put background music into it, or if you are a teacher and work with students to adapt a theatre play onto stage – you do create yourself. Therefore, you will be the author of the work that comes out in the end.
This does not make you less of a user. You still need the right license for these uses.
A copyright license is a form of contract based in copyright law. It represents an agreement between someone who wants to use a work (a film, song, image, text, etc.) and someone else who can give permission to use it, in exchange for money.
  • USING WORKS AS PART OF YOUR BUSINESS
There are several business activities where copyright licenses are crucial. I suppose you don’t want to infringe these rigths, so you will need the right licenses if you do any of the following:
  • produce contents for online uses (marketing, coaching, educational materials),
  • design home pages, run social media pages,
  • create videos for educational, entertaining purposes,
  • you are a vlogger and you run your own channel on YouTube, Instagram or Facebook,
  • you are an influencer and create posts, memes, giffs, short videos,
  • you cooperate with a TV channel, produce videos that will be broadcasted on TV,
  • you create audiovisual commercials, ads for your clients etc.,
and while doing so, you benefit from other people’s existing contents (photos, videos, poems, posts).
  • WHEN DO YOU NEED PERMISSION?

Copyright license is needed every time you want to use someone else’s copyright work in a material or non-material way.

Here is a short test for you that helps to check whether or not you need a permission.

First check. Is it a copyright work what you want to use? YES/NO For the definition of copyright work, read my earlier article.

Second check. Is it still under copyright protection? YES/NO For further details, see my earlier article about the duration of copyright.

Third check. Is the act you want to carry out on the work a ‘use’ in the sense of the Hungarian Copyright Act? YES/NO For the definition of the ‘usage of the work’, read my summary here.

Fourth check. If to 1-3 the answer is YES, then check the Hungarian Copyright Code if there is a free use that exempts you from the obligation of asking for permission. (A later article will deal with these). I FOUND A FREE USE / NO FREE USE ON THIS

If the answer is YES on checkpoints 1-3, and NO on 4, then permission is neded.

In any other cases, no permission is needed for your activity.

If you use a work in a chain of uses, then obtaining one license does not substitute the permission for the successive uses.

For example, if a TV channel produces a music video then it needs permission from the music publisher and the recording company for synchronizing the music. If the TV plays (broadcasts) this music video, then it must obtain license from the collective management organization (CMO) to use the music in it. If the TV makes an archive from its show online available, this requires another license. If the owner of a bar will play the TV channel in his bar, then a separate license must be obtained for this use from the respective CMO. (Obtaining permission from the respective CMO will be the subject of the next article.)

  • COPYRIGHT MYTHS ABOUT LICENSING

Sometimes you presume you don’t need a license – but this is false. Let’s kill a few copyright myths based on the Hungarian Copyright Code.

Using a work does not necessarily leave ‘traces’ behind. Eg. performing music in public occurs in a non-material way, it still requires permission.

A use does not necessarily mean many people will perceive it. Eg. If you play a gig in a club but no one comes along; or exhibit a painting for an exclusive audience – this still qualifies as a usage.

A use does not always harm the author’s interest significantly. “If I put a Queen’s song into my video as a background music, what harm would this cause to authors?” This is no excuse for the user.

No matter if profit is made, illegal uses harm the author’s economic interest. Photo: Flickr/Bruno (CC)
Users mostly benefit from the uses in a financial way.
However, we cannot presume that if the use is not for commercial purposes then no permission is needed.

For example, someone publishes a writer’s novel and distributes it for free. He does not want to make profit from it, just wants to spread it out, because it is such an important piece of the cultural heritage.

What is the result? The novelist cannot sell the book in the bookstores himself as it is already available for free.

The same happens, when someone uploads a copyright content (a book, a picture or a film) to the internet so that everyone has access to it.

What is the result? The right holder cannot sell that product online as it is available for free.

Using someone else’s copyright work for non-profit uses can be as harmful as doing this for business.
It destroys the possibility of a lucrative exploitation of the work by the author himself.
  • HOW CAN YOU OBTAIN THE COPYRIGHT PERMISSION?

The kind of license you need will depend on the work you want to use, how you want to use it and how the copyright holder is ready to give you the permission.

The license can be obtained through a licensing contract. The user and the respective right holder will agree on the scope of the use, the royalty and other details they consider important in accordance with the general provisions on contracts of the Hungarian Civil Code and with the license-specific rules of the Copyright Code.

General rules on contracts are for example:

  • Contracts are voluntary. (However specific rules apply on the collective management organizations)
  • The parties shall agree at least on the essential conditions of the license in order to have an existing contract.
  • Terms of use are negotiated on an individual basis between copyright holder and potential licensee. E.g. There are no statutory rules on “how much is the royalty”. (CMOs are exceptions again)
  • It is important to define under which circumstances (e.g. breach of contract) can the parties terminate the contract.
You get a license through contracting. Contract is a mutual declaration on rights and obligation that are bounding for the parties for the future. Photo: Photo / Hernan Pinera (CC)
License-specific rules on contracts are for example:
  • Licensing agreements will be interpreted in favor of the author (‘in dubio pro autoris’).
  • Parties shall explicitly rule if the license is exclusive. (This means that only the user has the right to use the work in the future. The author will not keep this right anymore.)
  • Parties shall explicitly rule if the license is transferable.
  • Parties shall explicitly rule if the license is free of charge. If they agree on nothing, royalty is payable.
  • Parties shall explicitly rule if the use includes adaptation (synchronization) of the work.
  • The license can be restricted to a territory, duration, types of uses and the extension of the use.
  • No license can be granted on an unlimited number of works that will be created in the future.
  • Licenses shall be granted in writing. (Exception: online licenses granted by the author, licenses for articles to be published in newspapers, journals).
  • Licenses are either directly granted by the right holders (author, legal successor) or by the collective management organizations.
  • SUMMARY

Getting the right copyright permissions is a complex matter.

If you run a business in Hungary and part of this you use copyright works of others, then this requires “thinking ahead” and understanding the local licensing system.

My intention here was to give you a rough overview of licensing.

In your individual case you might ask a lawyer for legal advice.
In my upcoming article, I will continue describing the two systems of licensing through individual and collective management licensing (Artisjus, MAHASZ, EJI).
To wrap it up:
  • if you as an author or right holder want to grant copyright licenses on your work,
  • if you need a licensing contract for that,
  • if you have received a draft and you are concerned if it reflects your interests,
  • if you are a user and want to receive permission to use someone else’s work,
  • if you are before or in the middle of a copyright dispute,
  • if you have an issue with collective management organizations,
contact me, I can help you to navigate through the maze.
My mission: I realized that there are many misconceptions about copyright that I call “copyright myths”. Therefore, I have started a copyright awareness raising campaign on social media – the English blog series is one part of it. Follow me on Facebook and Instagram for the Hungarian contents (#kfodorlegal). Let’s kill copyright myths once and for all. #KillingCopyrightMyths
Dr. Klaudia Franciska Fodor is an attorney-at-law in Budapest, specialized in copyright, real estate and company law. She used to work for the Hungarian copyright organization, Society Artisjus. Don’t hesitate to contact her in civil law related legal matters in Hungary.

Billboard picture with railways: Flickrs/Mike Steele (CC)

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