Advances in digital technology have created a virtually limitless supply of content available in “byte-sized” forms, where original works are being increasingly “atomized” into smaller, digestible digital content pieces for consumers and content providers alike.
Original “parent” works, such as books, articles, content libraries, software programs, multimedia works, and audiovisual compositions, give rise to atomized content such as excerpts, images, audiovisual clips, feeds, and samplings. Such atomized content is served and re-served to consumers through an ever-increasing number of interfaces: from computer, television, mobile device and social network “apps” to embedded web page media and text feeds. As the original works are broken down and repackaged in various forms to various audiences, copyright ownership and licensing considerations multiply beyond the original, complete work.
Specifically, each item of atomized content presents ownership and license issues depending on what agreements relate to the complete work, what atomized content is to be used, how it’s used, what copies can be made, who developed what materials and how it’s distributed. Additionally, license fees for the original work are likely different than for use and distribution of atomized content.
For example, say a hypothetical web-based magazine called “WebZine” provides a collection of reviews for various home theater products on its website. Let’s say each product review includes a digital article with text expressing the author’s evaluation and opinion of a device together with review photographs and videos.
A typical article might therefore be a joint work of authorship of a technical review writer and the photographer/videographer. If the parties only consider the basic end-use of the entire review article on WebZine’s website through the interface of an Internet browser, the parties might contemplate only a simple transfer of the authors’ entire bundle of rights by assignment or license to WebZine. These “bundled” transfers might occur as “work for hire” employment or the authors’ individual license contracts with WebZine.
Let’s take it a step further. Each WebZine review has the potential to be atomized and licensed for distribution by the authors, WebZine and/or third parties to many other digital content interfaces beyond WebZine’s web pages including only the full review.
The atomized content may include specific “pieces” of the original work such as product images, product video and text excerpts from the review. These “pieces” could be separately licensed for digital consumption to a variety of third party uses, such as other review websites, retail websites, device apps, feeds, dashboard widgets, blogs, comparison interfaces, video platforms, image platforms and other distribution interfaces. Each license may contemplate different terms and fees.
If the authors have already transferred all of their copyright interests to WebZine, then WebZine is the owner and licensor to structure potential licensing relationships of both the full work and these atomized works. WebZine can establish different content license fees for particular uses, particular distribution channels and for third party downstream sublicense rights. WebZine might also syndicate atomized content, require tracking of content use, require attribution and establish limits on how content may be repurposed.
If the authors are independent contractors and have not transferred their copyright ownership interests by employment/work for hire relationship, assignment or exclusive license to WebZine, the authors remain individual owners and licensors and can determine the licensing of their bundle of rights, in regards to both the entire work and atomized content. In such author ownership scenarios, the author-licensors might grant certain rights to WebZine regarding use of the full review on the review website while reserving rights to atomize and license content themselves.
As suggested by the basic WebZine example, digital content presents the opportunity for numerous revenue-generating models as ownership and license rights are considered across the bundle of individual copyright rights, including:
- Right to reproduce the copyrighted work in copies or phonorecords
- What portions may or may not be copied as atomized content?
- In what forms and to what distribution interfaces can the content be reproduced?
- In what digital and non-digital media is reproduction of the content permitted?
- Right to prepare derivative works based upon the copyrighted work
- Any restrictions on how atomized content may be incorporated to create new content?
- In what digital and non-digital media may derivative works be created?
- Who is granted the right to create derivative works and may the right be sublicensed?
- Right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- Right to perform the copyrighted work publicly — literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
- Right to display the copyrighted work publicly — literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
- Right to perform the copyrighted work publicly by means of a digital audio transmission — sound recording
Eric Hanson is a partner in the intellectual property practice in the Atlanta office of Hunton & Williams LLP. His practice focuses on intellectual property, with particular emphasis on the management of patent, trademark, copyright, domain name and trade secrets, domestic and international patent and trademark procurement, conducting patentability, validity, infringement, and product clearance reviews, and developing asset licensing and transfer strategies.
Eric is a registered Patent Attorney with the United States Patent & Trademark Office.
See also: Fair use contributes significant economic effect (another article on today’s TJS, not connected in any way with Hunton & Williams).