Introduction to the Legal Landscape Behind Being a 21stCentury Creator
By Taylor Vogt
Every creator needs to protect themselves from a wide variety of potential sources of conflict when building their brand. This can come in the form of someone stealing your work and proclaiming it to be their own, a large company taking your work and adapting it to their own marketing campaign or being caught up in a dispute over fair use and creative commons issues with other creators. Issues might arise in the intellectual property area when you do not use non-disclosure agreements and letters of intent when communicating your idea to people who could take it and use it themselves. Arming yourself with the knowledge of things like copyright, trademarking and even patenting, along with the process through which you communicate your ideas, you can protect yourself in a world hungry to hear your ideas and creative passions.
The first area to understand is fair use. Anyone has the opportunity to take your work and repurpose it, adding their own particular insights or commentary onto your work in a limited capacity. This works well and good until someone takes your work and enters into the marketplace claiming it to be their own. Fair use does not support someone passing your work off as theirs, as in cases where Youtube videos are posted to other channels verbatim from the original. These postings violate fair use and are subject to litigation at it’s most serious. This can be applied to a webcomic, in a situation where someone copies the art, characters and plot design of an existing enterprise without expressed permission and makes a private profit off of it.
Fair use is dictated by Title 17 of the United States Code outlining United States Copyright Law. The four pillars of this code are as follows: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work.
Your stories are your own, and if it is not parodied, criticized or commented on then it is not fair use.
The second area worth considering is creative commons. Creative commons allows creators legal protection for their work while also allowing other content creators to take from the original creator’s work and make it their own. There are layers of different types of creative commons but we’ll focus on three; 1. Attribution, 2. Non-Commercial Licenses& 3. Public Domain/Zero. Attributionallows creators to take your original work and distribute, remix, and create new or supplementary work upon your original, with potential for commercial use, as long as they credit the original creator. Non-Commercial Licensesoften imply that a creator’s work is being given the same treatment as attributionbut in a setting that does not allow income, I.E. a classroom setting, executive documents and websites that allow for non-profit uploading like Youtube or Soundcloud. Public Domain/Zerois plainly content which can be used for whatever ends a creator has, without risk of legal reciprocity for their work, even commercially and without attribution.
The bottom line, though, is that you must explicitly opt into and allow people to engage in creative commons remixing and adaptation. You will always have the first say in whether people are allowed to use your work commercially.
You need to protect yourself, especially when sharing critical ideas about your intellectual property in a business or legal environment. A Non-Disclosure Agreement is essential for all aspects of your business dealings, particularly in regards to initial conversations with clients or partners about your intellectual property. An NDA is a relatively simple document, that when signed by the parties in question, protects you from having your idea stolen by the people you are talking to. This protection does not include general concepts that are in the public domain, but rather important details that are respective to your individual creation.
When entering into a formal agreement between yourself and a client, or if you are the client, it is important to have as much documentation about the agreement as possible. This discourages the other side from altering the agreement. The point of a Letter of Intent is to affirm between two or more parties the guidelines upon which a formalized agreement for contractual obligations will be created. During the negotiation process between a client and yourself it is important to be on the same page. A Letter of Intent, or multiple as the engagement evolves, is critical to assuring the final contract is as was discussed.
I will leave you with two very important definitions. One is for copyright, as defined by the United States Copyright Office, and the other is for trademarking by the United States Patent and Trademarking Office. “Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” – United States Copyright Office.“A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods.” – United States Patent and Trademarking Office.
You need to be vigilant about protecting yourself in this day and age. There are so many tricks people will employ to rob you of your intellectual property. You need to be knowledgeable about the legal landscape, especially about the essentials so you don’t get taken advantage of by someone who does.