Content Clearances & Ownership

Important information and helpful forms for all creators uploading content to sell on X4Y

Content Clearances & Ownership

Disclaimer

The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content as that is your responsibility as the creator. For legal inquiries and advice, you should consult with an attorney before submitting content to X4Y.

Clearing Your Content

Before submitting content to X4Y, it is important to ensure that the content does not contain anything that may infringe on the rights of others, and that creators have all the required rights and permissions to make use of their content.

Here, we are providing you as a creator with information and sample language that you may use as an informational resource and a helpful starting point for clearing content for use on X4Y. The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content or any claims of infringement against you or others as that is your responsibility as the creator, as you have acknowledged and agreed to in the Terms of Service and the Creator Agreement. For legal inquiries and advice, content creators should consult with an attorney before submitting content to X4Y.

The following checklist and links to additional information is intended as a helpful starting point for thinking through the potential third party rights in your content that you need to clear before posting to X4Y:

  • PEOPLE: If there are people in your content, including their image, their name, or other features that identify a person (e.g., player number, hairstyle, dance style), scroll down to the People section.
  • PLACES: If you filmed at a location that required special permission to be there or there are landmarks or recognizable buildings in your content, scroll down to the Places subpage.
  • PRODUCTS, LOGOS & BRANDS: If your content includes any products, logos, brands, or trademarks, or anything else that would identify something as being from a certain source, scroll down to the Products, Logos & brands subpage.
  • ART, MUSIC, CLIPS & OTHER CREATIVE WORKS: If your content includes any artwork, music, video clips, or other creative works like social media posts, video games, characters, graffiti, choreography or cultural symbols, scroll down to the Art, Music, Clips & other Creative Works subpage.

People

The “right of publicity” is a person’s right to control the use of their name, image, voice, likeness, or other indicator of their identity, for commercial gain. This right is established by state statutes and case law but is generally recognized across the United States.

Typical examples of a person controlling and benefitting from their right of publicity are celebrities, influencers, actors or models who are paid for their appearance in advertisements, or for their endorsement or recommendation of products or services. However, the right of publicity is not limited to celebrities or well-known personalities and applies more broadly to all individuals. In addition, many states, but not all, recognize this right even after someone is deceased.

In addition to a person’s name, voice or image, the right of publicity can also include other indicators that identify that individual, such as their player number, a distinctive hairstyle, an original dance style, a nickname, or an animation or caricature of the person.

Since content submitted to X4Y is commercial in nature and is intended to be used in a commercial way, you need to consider the right of publicity if there are any people (or indicators of specific people) in your content.

Typically, content creators obtain a “Talent Release” (or similar type of appearance release) from every individual appearing in their content. Talent Release forms explicitly authorize content creators to make use of the person’s name, image, voice and likeness within the content and help mitigate the potential for a right of publicity claim. Talent Release forms usually also waive the featured persons’ right to approve the content, discharge any claims against the creator related to the content, and grant the creator the right to use the content in any way the creator wishes.

Each person featured in the content needs to sign a “Talent Release” or other similar form of appearance release agreement.

For talent under the age of 18, the Talent Release form must also be signed by the parent or guardian of the minor granting the same permissions. Some states also require the minor’s signature if they are over the age of 14. The release should also include the talent’s date of birth, and their guardian’s contact information, including address.

In certain instances, the union SAG-AFTRA may apply to govern the production and exploitation of content. SAG-AFTRA dictates minimum compensation provisions, as well as other requirements (such as work rules, meal periods, etc.). SAG-AFTRA will only apply to content if the creator contacts SAG-AFTRA and signs the necessary documents to become a signatory. If the content is subject to SAG-AFTRA, X4Y needs to be informed immediately.

Model Release Form

Disclaimer

The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content as that is your responsibility as the creator. For legal inquiries and advice, you should consult with an attorney before submitting content to X4Y.

Places

Some locations require special permission to allow creators to enter onto the premises and film. For example, many university campuses, private buildings, or government buildings require permission to film on location and/or depict these places on screen. As a best practice, a location release form should be signed by the property owner formally granting the content creator the right to enter and remain on the property, the right to film the property, and the right to depict the property (and structures and other elements on the property) on screen. The release should include the name and address of the property, the dates of filming, the name and signature of the property owner, and an attestation that the signatory has the right and authority to grant permissions related to the property. A sample Location Release Form is available below.

You should also consider whether there is a particular landmark or recognizable building that appears in your content. Typically, having a landmark or building in creative content does not create a copyright concern because in the United States, there are few restrictions on the ability to film or take photographs of buildings so long as they are located in or viewable from a public place.

However, since the content is intended to be used as advertising, there is also a need to consider whether there could be a trademark concern. Some building owners will claim trademark in a building itself. For example, a university may consider a particular building on campus to identify the university. Another example is the illuminated Eiffel Tower, which is claimed to be protected by trademark (though not the Eiffel Tower that is not illuminated). A trademark claim may arise if the use of the building in the content creates an impression that the owner or the entity that is associated with the building endorses the goods or services in the advertisement. For example, if content prominently uses a particular building from a university campus that the public associates with that university and the content was used in an advertisement for tutoring services or student loan services, the university may claim that consumers mistakenly think that the university endorses or is affiliated with those tutoring or student loan services. This question of whether the use creates consumer confusion can be difficult to discern in the abstract, so if your content includes a landmark or recognizable building that the public would associate with a particular source, you may want to consult legal counsel.

Model Release Form

Disclaimer

The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content as that is your responsibility as the creator. For legal inquiries and advice, you should consult with an attorney before submitting content to X4Y.

Products, Logos and Brands

A trademark is a word, symbol, phrase, color, sound, or other device that identifies the source of a product or service. This is typically referred to as a brand or branding in marketing spheres. A trademark gives the owner the exclusive right to use the trademark in connection with the goods and services the owner chooses to sell bearing said trademark. Examples of trademarks include: the word APPLE, the phrase JUST DO IT, the logo of the Golden Arches, the sound of the MGM lion roar, the color blue identified with Tiffany & Co., or even the shape of a product like the Coca Cola bottle.

Trademark infringement is the unauthorized use of a trademark in a way that is likely to cause consumer confusion as to the source, affiliation, or sponsorship of that product or service. Trademark dilution can also occur if the use of a famous trademark could dilute or damage the fame, goodwill or reputation of the trademark owner.

The inclusion of brands, logos, and products in content submitted to X4Y without the permission of the mark holder may constitute trademark infringement. So, it is important to review all content for the presence of any trademarks, such as logos, brand names, branded products, sounds, colors or phrases, and unless specifically licensed or commissioned by the trademark owner, such trademarks should be removed from content prior to submission to X4Y.

Pro tip: Make your X4Y content “ready-to-brand” and remove all products, logos, and brands before uploading it!

Disclaimer

The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content as that is your responsibility as the creator. For legal inquiries and advice, you should consult with an attorney before submitting content to X4Y.

Art, Music, Clips & Other Creative Works

Before submission, consider whether your content includes any other creative works or materials created by someone else. This may include music, video clips, graphic designs, characters, social media posts, choreography, artwork, graffiti, sculptures, video games, and other creative elements. For example, if you film at a location where prominent graffiti appears in the background, this is creative work that is now included in your content and the unauthorized use of that creative work may constitute copyright infringement.

To avoid copyright claims against your content, all other creative works that are included should either be removed or licensed to you by the copyright owner of that creative work.

A license should include the name and signature of the owner of the creative work, a representation that they own the copyright to the work, the title and description of the work, and (if practicable) a thumbnail image or copy of the work should be attached to the agreement. A sample Content License Form is available below.

If your content includes music, all music must have been used with the proper permissions. For example, to properly include prerecorded music in audiovisual content, the creator typically must obtain both a synchronization license (typically from the music publisher) and a master recording license (typically from the record label). The use of music in your content without these two licenses may give rise to claims of copyright infringement. To avoid your content being subject to copyright claims, all unlicensed music should be removed prior to submitting to X4Y.

For example, if you film at a location where prominent graffiti appears in the background, this is creative work that is now included in your content and the unauthorized use of that creative work may constitute copyright infringement.

Ownership Interests in Your Content

Before submitting content to X4Y, you should define the ownership rights and any splits for royalties.

Here, we are providing you as a creator with background and information that you may use as an informational resource and a helpful starting point for ensuring ownership of content before you post on X4Y. The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content or any claims of third-party ownership as that is your responsibility as the creator, as you have acknowledged and agreed to in the Terms of Service and the Creator Agreement. For legal inquiries and advice, content creators should consult with an attorney before submitting content to X4Y.

If you created the content as part of another project or if you are an employee of another company and your creating this type of work is within your normal function, you also need to consider whether you own the rights to the content and you should review more information on Ownership.

If more than one person contributed to the content or the concept or the idea on which the content is based, the content may be considered a work of “joint authorship” where you have co-ownership with that other person, and you should review more information on Joint Authorship.

Content Ownership & Authorship

In determining copyright authorship and ownership of your content, you should consider whether anyone else might claim ownership. This could be: an employer if this is the type of work that you normally create in your day to day employment; someone who hired you to create the content if there was a written work for hire agreement in place; or other people who contributed ideas, suggestions or other materials to you as you created the content.

Joint Authorship: When two or more people contribute to a creative work, the work may be considered a work of “joint authorship.” United States copyright law considers a work to be one of joint authorship when each author (1) made a copyrightable contribution to the final work, and (2) the contributors intended their contributions to be merged into a unitary whole. While each contributor may license their interests in the work independently, each co-author must receive an equal share of the proceeds unless they specifically agree otherwise. If more than one person is a joint author of the content that you submit to X4Y, you should determine in writing, before submitting to X4Y, the respective shares between yourselves. Or, if there are multiple contributors to your project and you intend to be the sole owner, then a Work For Hire agreement (the same one explained in paragraph below captioned “Work For Hire Agreement”) needs to be signed by the other contributors. One nuance about Joint Authorship, and the need for a Work For Hire agreement or assignment agreement, is that Joint Authorship does not apply to actors or other individuals who are depicted on screen- especially if they signed a Talent Release or other similar form of release agreement. Instead, Joint Authorship applies to the contributors behind the camera.

Ownership and Works Made for Hire: Outside of the “joint authorship” scenario, United States copyright law states that the creator of a work, whether a film, photograph, music or artwork, is the “author” of the work and owns the copyright in the work created. The owner can then license or assign the copyright.

The exception to this presumed ownership is when the work is a “work made for hire.” A work made for hire occurs in two situations: (1) employees who create the work “within the scope of their employment”; or (2) independent contractors commissioned to create a work if there is a written work for hire agreement signed by both parties and the work falls within one of the nine categories listed in the Copyright Act. A motion picture or other audiovisual work is one of the nine categories identified in the Copyright Act.

Employment: To evaluate whether the content was “created within the scope of employment,” factors that you should consider include:

  • whether the work is the kind the creator is employed to create;
  • whether the employer’s time, space, materials, and tools were used to create the work;
  • whether the employer had direction and control over the work;
  • whether the creator was paid by the employer to create the work;
  • whether the work is part of the regular course of business of the employer; and
  • the language of any employment agreement.

This list is not exhaustive but gives you a sense of the factors that you should consider. The determination of a work’s status as “made for hire” is highly fact intensive and if you have any concerns as to whether an employer may have a claim to ownership of your content, you should consult an attorney.

Independent Contractor: If you were commissioned to create the content and there was a written work for hire agreement in place, then the entity that commissioned the work will likely own the copyright in the content. It will be important for you to review the terms of that agreement to evaluate ownership and whether you have any rights. Again, if you have any doubts, you should consult an attorney.

On the other hand, you may have commissioned someone to contribute to the content. For example, perhaps you commissioned a graphic designer or an editor to assist with the content, or someone else helped you brainstorm about some creative ideas for the content.

Work for Hire Agreement: If anyone else contributed to the content and you intend to retain sole copyright ownership of that content, then you must have a written work for hire agreement or assignment agreement in place from that person. It must be in writing and it must be signed by both you and the other person. Otherwise, the other person owns their own contributions in the work and may even assert Joint Authorship with you. A sample written Work for Hire agreement is available below.

Model Release Form

Disclaimer

The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content as that is your responsibility as the creator. For legal inquiries and advice, you should consult with an attorney before submitting content to X4Y.