Creating your own content is a great way to populate a course, presentation, or website with material. However, if that content creation involves recording others, you will need permission from the people involved to a) record them and b) use their recordings.
Recently, the Copyright Resources Center helped staff at The Ohio State University parse the requirements and procedures surrounding licenses and releases for audio-visual copyrightable content. The issues that were addressed, and the resources most helpful in resolving them, are described here. The resources here will be most valuable for those at Ohio State. For readers outside of Ohio State, the general processes mentioned here may still be helpful. Similar departments or documents may exist at your institution, and we would highly recommend that you seek them out.
When do you need someone to sign a release?
The practical answer is that if you can identify someone in a recording, then you should get a release.
How often will you actually need these releases?
Always consider using one. In the event that someone gets upset when their likeness is used in a recording, it’s better to be covered.
What does OSU say about this?
From the OSU Brand Guidelines:
A photo or video of that scholar or professor is the perfect way to tell the Ohio State story. Most campus photography is in a public setting and therefor legal to be photographed. If there is -any question as to the legal standing to use the likeness of your subject, have him or her sign a release form. Always have release forms signed for minors or patients, including animal patients. Exceptions to this best practice include crowd scenes with no prominent person featured, event coverage and breaking news.
While this information is useful, it alone isn’t enough to clarify the rights needed to use the footage if copyrighted content is included. The Release & License Form that our office created clarifies what can and can’t be done, establishes rights and responsibilities up front, and allows multiple types of use after recording is done. Maybe a professor was happy to be recorded as part of a course, but doesn’t want to be used in a promotional video to “sell” the University or a particular course. Using the Release & License would help stop any potential trouble before it starts.
What about non-Ohio State University employees?
The Marketing and Communications department in the College of Food, Agricultural, and Environmental Sciences provides this suggestion:
If you take photographs or video of any non-Ohio State University employees for use in program or educational materials, please have subjects sign… a photo release form and keep all signed forms on file at your office.
What about students?
You will need to get a release whenever someone is recognizable. This protects OSU not only from someone upset with the use of their likeness, but also from any implied release of information that could be protected under the Federal Educational Rights and Privacy Act (FERPA). Videotape is specifically mentioned in FERPA as a method of holding student information, which can “be recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, microfiche, and e-mail” (34 CFR § 99.3).
How can you manage copyright concerns?
The Release & License Form has an accompanying “Highlights” document that may help solve these problems. The Highlights document can be used to “highlight key points of the Release & License Form in simple terms”. It is not a substitute for a signature on the actual Release & License, but it should be helpful when trying to parse some of the denser language. Helping someone understand the release & license form, and why you need it signed, is often the best way to address concerns. Have a short and concise explanation of both your project and the license and release form ready to go before you start recording.
How should the releases be stored?
Once someone signs a document, you must maintain a copy of that signed release or license for as long as you maintain the recording(s) to which it relates. According to Ohio State’s Records Management Policy (http://go.osu.edu/records-policy), there is no distinction between managing records in paper and electronic formats. Further, the University’s Electronic Signature Policy allows for signatures to be created, captured and maintained in a purely electronic format in a University approved system. For more information on the benefits of and guidelines for eSign approval, visit http://go.osu.edu/eSign. Regardless of how you obtain signatures, it is best if you can maintain the documents and materials in the same place, whether physical or digital, for ease of final disposition.
If you have any questions about managing University records please contact the University Archives at email@example.com or 614.292.2409.
How does it all fit together?
You should plan to obtain a release if you can identify someone in a recording, particularly if that individual is a student. If there is copyrightable content, you will also need to include a license. Have a plan to discuss both your project and the forms, as this can help ease any concerns that may arise. Best practice when storing documents and the accompanying license and release form is to have those items collocated – that is, in the same physical or digital location. When you create a storage system for documents, be sure that you incorporate this into the plan.
For readers outside of the Ohio State community, we highly recommend checking in with analogous departments or units within your organization or state. Within a college or university, check first for a scholarly communications office. Other searches could include external relations or marketing/communications, University archives, the business office (for record retention policies), or legal affairs. If there isn’t anyone at your organization who manages license and release, or document retention, processes check with related State agencies – perhaps your state archives or historical society, or even your local public library. They may be able to either help you develop your processes, or point you to someone who can.
If you need further assistance, or have additional questions, the resources listed throughout this document are likely to be the best source of information. However, feel free to reach out to the Copyright Resources Center, if there is anything we can do to help!
By Marley C. Nelson, Rights Management Specialist, Copyright Resources Center, The Ohio State University Libraries.
With thanks to Dan Noonan, Assistant Professor and e-Records/Digital Resources Archivist, The Ohio State University Libraries.