Can you use copyrighted material in your demo? Part Two: Can you vs. Should you.

NOTE: This is the second post in a two-part article. Click here to read part one!

Last week we discussed copyright issues involved with using a paid job on your demo. Now let’s turn to the situation when you record an audition, or a “pretend” production made specifically for your demo. (And a reminder: This applies to voice talent at all experience levels, because everyone needs a fresh, up-to-date demo and most everyone should continually expand or strengthen their capabilities and client opportunities.) What may you use, and what should you?

If you were not paid for the job, or (more to the point) if it was a demo or a “pretend” production, the issues are more complex. This is where the questions shift from “May I” to “Should I?”

First, the “May I?” issues …

May you use someone else’s script?

Using a script from (for example) an actual commercial, invites various complications. For one, you don’t own the copyright to that script. The legal principle of “Fair Use” says copyrighted material can be used as long as not directly used to make a profit, but opinions differ as to what constitutes “directly.” You’re not charging people to listen, but your aim is, after all, to land a paying client.

In Part 1, we cited a passage in the book Voice Over Legal by attorney Robert J. Sciglimpaglia Jr. On that page, he also said:

… there is a popular misconception in the voice over business that once a commercial airs, the copy is free to poach and use on demos. This is NOT the case, as that copy was probably copyrighted by the advertising agent or author of that copy.

It’s also important to note that intellectual property may be automatically protected by copyright even if it does not bear a copyright notice.

In 2008, Voices.com asked an attorney specializing in copyright and intellectual property law, David R. Canton, Lawyer and Trade-mark Agent then (and currently) with Harrison Pensa LLP in London, Canada. We hasten to point out that he’s in London, CANADA (not England) and laws elsewhere may differ. As he himself noted, laws and situations vary by location and from case to case.

Attorney Canton said:

Another thing to consider is that rights owners vary greatly in their inclination and desire to enforce their IP rights. Some may not care, or may let violations slide on the basis that it is good publicity. Others may be overly aggressive and try to stop things that one is legally able to do.

(Read the full interview here: http://blogs.voices.com/voxdaily/2008/12/voice_overs_tough_legal_questio…

The “May I” question is complicated no matter how you approach it, so legality might not be the best determining factor in using a script.

What about music and sound effects?

In the case of recorded music, melodies, lyrics, sound effects, other talent’s work, etc., copyright owners have not always been so forgiving.

Publishers have software that crawls the Web to find unlicensed usage. The consequences might be a simple cease-and-desist request, but could involve claims or penalties and other complications that could be severe. Rather than take a chance, it’s safer and potentially far less expensive to have your demo produced by a studio with an extensive library of licensed music and effects. (It should be extensive so that all their demos don’t sound the same.) Get a copy of the licensing paperwork or at least a statement from the producer that all the cuts have been cleared for use and distribution on your demo in perpetuity and require no further payment.

Your demo should be unique.

Regardless, your demo shouldn’t include a script that everyone else has. If you do use existing content, choose a distinctive but little known passage, or edit it to create a unique demo segment.

(Our Practice Script Library links to copy-editing examples and some other demo tips. Also see our recent article, Should you write your own demo copy?)

Also bear in mind what we said about the possible sensitivity of “obscure” published work in Part 1.

How about auditions?

Naturally, a work should be considered off-limits if the copyright owner or publisher expressly prohibits re-use. For example, in VoiceRegistry.com’s “Weekly Workout” feature (something like EdgeStudio.com’s Feedback Forum), each script is headed with:

Please note that the script attached while having been aired is under copyright law consequently it is advised that the voice actors do not use these scripts on their voice demos without significant changes to the dialogue.

And the terms for participating are more restrictive:

No readings, recordings or text may be used for any purpose without the express written permission of voicebank.net and the copyright holder.

We’ve said that using an audition is a matter of judgment, recommending that you get permission. Some people argue that it’s an almost absolute no-no, because it would be misrepresentative of work you’ve done. True, you may not have been chosen by that client. But we’d disagree somewhat with the issue of it being misrepresentative. A “demo” is called that because it is a demonstration. It is not intended to be a portfolio or resume.

However, it is likely to be heard by all sorts of potential clients and screeners, some of whom might not realize that.

Brand names – another point of contention

For that reason, even in a script you wrote yourself, including a brand name can be problematic. On a well-produced demo, “pretend” copy is indistinguishable from a professionally produced actual spot. If your demo causes someone to think you were the actual talent for Product X, it could cause embarrassment of many kinds somewhere down the line. If prospective Client X assumes you’re the spokesman for Product Y, it might even cost you a job.

An experienced casting person probably knows who recorded what major products, and if they’ve never heard of you, they might figure yours are simulations. But an assistant assigned to screen talent for, say, an automobile dealer association might not be so savvy. Will they be impressed by a brand name … or feel snookered … or note the absence of any brand names … who knows? Various reputable, expert demo producers have their own opinions, and both positions have merit. It’s something to discuss with your demo coach.

Some people suggest creating a fake brand name. But that, too, might present some risks. For one, what if you unwittingly make up a name that is actually in use? You might just as easily substitute a pronoun or generic phrase. (E.g., instead of “Brandname canned peas” say “these” or “our canned peas.”)

The safest path

Overall, the safest route is to write your own scripts, using existing copy for inspiration. Sources of input may include magazine ads, websites, and brochures. And as you adapt it, write for the ear, not for the eye.

Use paid work that has aired or been publicly distributed, with prior written permission from the copyright owner. Including the brand name is less problematic – you did work for the brand.

As for audition cuts recorded by maybe hundreds of people, use them sparingly if at all. Again, get written permission. But beware: the listener might hear the actual production, and think, “This actual version is way better.” So a wiser approach would be to write a similar script, and produce that, omitting the brand.

And above all, make your demo from only your best work. If you include ho-hum, me-to stuff, or a less-than-stellar performance – even if actual paid jobs — no amount of brand names, music, SFX, or real-world copy will save it.

If you include great work, it will help you’ll accrue a strong collection of actual jobs, making simulated work a minor concern.

ADDITIONAL READING:

Copyrights: Will Your Demo Get You Sued? By Robert J. Sciglimpaglia Jr., Esq.

Shedding Light on the Dark Side of the Voice Over Business By Robert J. Sciglimpaglia, Jr., Esq. (IV: Intellectual Property Issues: Copyrights and Trademarks)