The media landscape is changing, and while that comes with a lot of exciting progress, there are also some challenges. That’s particularly the case for documentary or editorial film/television producers looking to understand the effect that evolving media has on securing rights and licenses. Earlier this year, Pond5 hosted a panel in Los Angeles called “The Current and Future State of Media Licensing” to explore precisely that topic.
In partnership with the Association of Clearance and Research Professionals (also known as CLEAR), which provides educational and networking opportunities to its members, a panel of experts was assembled to represent every part of the process — from artist to clearance lawyer. To share some of the biggest takeaways, we spoke with panel moderator and CLEAR Co-Executive Director John Downey III, who elaborated on the five most important things you need to know about media licensing today.
CLEAR Co-Executive Director Barbara Gregson introduces John Downey III
1. Technology may be changing, but copyright and trademark rules aren’t
We live in an age of new media channels like Netflix and YouTube and emerging mediums including virtual and augmented reality. But just because technology and media are evolving, doesn’t mean copyright and trademark rules don’t apply as they always have. For example, 360-degree cameras may be an exciting technological advancement that allow videographers to shoot everything — but “everything” also means capturing more things that may need clearance. If there’s a Dunkin’ Donuts in the background, or music on the radio, that’s all subject to regular rules – ones that aren’t going anywhere for the foreseeable future. “The rules don’t change until the law changes,” says Downey. “It always goes back to the basic three questions: What does your lawyer say? What does your network say? What does Broadcast Standards and Practices say?”
The panelists discuss the state of licensing
2. “Public domain” doesn’t mean “free-to-use commercially”
The more we venture into the 21st century, the more footage from the early days of camera use is going to slip into the public domain. Good news, right? Yes and no, because not all public-domain footage may be as free-and-clear as you might think. For one thing, some companies have found ways to preserve their rights. For example, while Mickey Mouse (via “Steamboat Willie“) enters public domain in 2024, Downey says a company like Disney is very likely to find other ways to preserve its copyrights. Another concern is that what may be in the public domain in one country may have been re-registered elsewhere. And then there’s the issue of publicity and privacy rights. In other words, the more footage from the early days of cinema become accessible, the more producers, as well as rights and clearance professionals, need to pursue due diligence to protect themselves against liability.
3. Being able to find something easily online doesn’t mean you can use it
Thanks to Google searches and YouTube, a treasure trove of previously inaccessible material is available to us all. But easy doesn’t mean easy-to-use. If you don’t play detective and confirm the sources of clips you’re using, there can be repercussions. Downey worked on a show where producers edited in several old news clips they found online from shows like ABC News, World News Tonight, and Nightline. When Downey saw the cut, he told them the bad news: they couldn’t use it. What happens if there’s not someone like Downey around to point that out? You have to pay. “I’ve had it happen on shows before,” he says. “You end up with four clips that were five seconds long that cost you $3,000.” Good sleuthing legwork to identify people, locations, and origins of clips is one way to avoid that. The other is to rely instead on established collections like Pond5’s to avoid realizing costly after-the-fact licensing gaps. “If you had gone to a reputable collection that had that kind of content first, you might not have had that hiccup and loss of the time,” says Downey.
Pond5 CEO Jason Teichman with Barbara Gregson, Pond5’s Jonathan Gottlieb, and Byba Sepit
4. No one license fits all, even in an age of “universal rights”
As media changes and evolves, one thing that’s also changing is the nature of what rights are granted in agreements. “The language legally will change and get tweaked over time to cover what’s coming next,” says, Downey. That could include VR and AR applications, for example. That’s why “universal rights” is becoming a more common term, especially when media companies acquire copyrights for work-for-hire. But that doesn’t mean one license fills all — yet. There can still be restrictions. What you can use in one country, you might not be able to use in another (or several); what might be cleared for broadcast might not be cleared for use elsewhere. What you want to do then is try to find licenses that cover as much as possible — one of the major reasons for the recent launch of Pond5 Extended Licenses. “If I had to sit down with all the content providers, I would try to give them a lesson in licensing,” says Downey.
Attendees at the “State of Media Licensing” event
5. Viral videos and memes aren’t risk-free
Memes and viral videos may be everywhere (with no sign of stopping), but you may also want to think twice about using one. “Depending on who owned the original format, if you post it somewhere and it’s derogatory, somebody could come after you. You do have to be careful,” says Downey. The other consideration is the rise of companies that look to secure the rights to viral videos as they’re taking off, so they can sell them to producers. It’s a surprisingly pervasive trend. “I’m not a big viral licenser, but if I go out to license ten clips that my editors find, I guarantee eight out of ten of them are represented,” Downey says.
A viral video from a Russian news report recently trending online
Even if you buy the rights, there’s risks, because those companies don’t always represent everything you can see in a viral clip. “They’ll just say, ‘We’re not representing all the trademarks,’” explains Downey. “That is the bigger issue, because they might have shot buildings with Starbucks in them and all kinds of things that you have to be aware of, and they’re not going to protect you for those images.” That leaves producers, researchers, and clearance lawyers with a choice: “Either we have to justify it as editorial use, or we have to assume the risk — or we have to assess what the problems are and decide, ‘Is this something we really want to put in the show?'”
Pond5’s James Wright and Robert Pascale and friends
The main takeaway
Which brings us to the one point that runs through all the others above: Yes, things are changing, but a lot isn’t. What remains important — if it isn’t more important now — is the need for producers, as well as license and clearance professionals, to exercise caution and due diligence. That can mean choosing the safest route with collections like Pond5, or investing the time and research (and money) to make sure whatever clips you use on a project are as risk-free as possible.
What are your thoughts on media licensing and clearances in the current era? What questions do you still have? Sound off in the comments below!