The trifecta of scary words for creatives.
This month we had lawyer John Weaver come in and help us untangle the dark scary Lord-of-the-Rings-level web of copyright law.
John did a great idea of soothing our fears and helping us understand our options.
Here are the biggest takeaways:
Be more aware of when and how you should go after infringers.
Know your rights.
Know how you can protect your work.
Written by Anna Hetzel, copywriter (unfortunate homonym), who wasn’t at the meetup but took notes off a phone recording by fearless leader Danielle.
Photos by Sean Gorant.
*Nothing in this post should be considered as legal advice.
**I (Anna) use first-person when John is answering questions, but they are paraphrased and not verbatim.
John Weaver of Stansbury Weaver
What’s the difference between copyright and trademark?
Copyright protects the creative expression of ideas.
The traditional realm of copyright is literary works, art, music, and permanent-fixed medium. Now it’s also software code as well.
If you’re producing products and art, that’s copyright.
The good news is that as soon as you publish work you have a copyright on it (unless there’s something in writing saying otherwise). And yes, Instagram does count as publishing a work.
For example, if you published a book and I bought the book, I don’t own the book. I own a copy of that book.
I can’t republish it or write a screenplay based on it.
The creative expression stays with the artist.
But there could be contract work that says “I pay you to create something and I keep the copyright - it’s not your work.”
Now the difference is if you register the copyright.
Registering the copyright gives you a lot more protection if someone does infringe, but you still have legal rights without registering.
Intellectual copyright rests with the creator unless someone says otherwise.
Trademark is a creative expression that identifies the source of the good - like the Nike swoosh. If you’re doing branding for other companies, that’s probably more trademark territory than copyright.
Why is copyright registration so important?
As soon as you create the work you have the copyright on it.
But! You cannot sue someone for copyright infringement unless you have a registered copyright with the US Copyright Office.
You have the copyright no matter, but to enforce your right you have to get a registration.
Infringement is really difficult to argue. There are two things that have to happen.
First is: did infringement actually happen?
That can get really murky. If you take a design and change some elements - is that copyright infringement?
It has to be proved.
In Yao’s case, they just took her design and stuck it on a product.
That’s easy to prove.
Next you have to prove damages.
You can’t just say “You’ve done something you shouldn’t have done.”
You have to prove injury.
Sometimes that easy to show: I made a thing, this other company took it and made money off of it. That’s money I could have made.
Here’s where registering your work is critical.
If you have registered copyright you can skip step two.
You can take damages based on statutory laws and ask for attorney’s fees.
So what are you supposed to do? Registered every single design? How do you choose what to register?
The right decision is understanding what the options are and then deciding what to do. Registering all of your work is one option you can take but if you’re producing a lot of work, that is so much.
The key is to understand WHY you’re doing it.
The ability to take statutory damages and skipping step two is only available if you register your copyright prior to the infringement or within 6 months of publication.
So how do we pick and choose what designs?
The good news is that copyright registration is simpler and cheaper than trademark registration.
Copyright registration could be as low as $30.
Unpublished works can now be registered in batches. And that’s new - batching.
So you can take 1,000 images that you haven’t published yet and do it in one registration.
You can save money and it can help your business.
If it’s registered copyright you don’t have to prove harm. Your rights don’t change but your ability to enforce your rights do.
I’m about to do publish a large licensing deal that will be sold in big box stores - I’m pre-registering those artworks to be proactive now.
In contracts, you can say the right are yours or the rights are mine. Do you have a recommendation on what we should do?
It depends on your business and what the client is paying for.
If you’re creating something and the underlying contract says that the client will own the final product, you should probably be charging a little more for that because they are getting an asset.
If you’re doing branding and the client doesn’t ask for the trademark, they might have no idea what they’re doing.
You should probably help them out and give them the rights to it, because once they start using it on goods it could get really confusing.
It would look weird if you’re doing logo work and then sue them later for infringement.
They should have exclusive rights. That’s standard in the branding space.
The rights go to the client. That’s what they are paying you for.
But it gets trickier because this isn’t real property, it’s not tangible goods. It’s a digital asset and idea.
If you create a character to sell a product or game is it a trademark or a copyright?
It’s probably both.
Again, we’re just trying to apply old laws to a digital world. It’s not a perfect system.
Big business always try to take advantage of unregistered designs. What about big companies that are notorious for this?
The other side to that question is how does it look for the company ripping off the artists?
It looks bad.
You’re starting to see push back on brands.
People want to buy goods from ethical businesses.
So if a big box store steals your work you have some leverage: “How does it look if we file a lawsuit and then put it on blast with reporters?”
The bad news is that IP fights are asset and resource fights. Whoever the most money is going to win. It’s frustrating as an artist.
But that’s just the society we win in.
You have some options though. You can either force them to stop selling the product or you can offer to license other designs to that company to make your money back.
People’s jobs depend on this. It might just be yours. Yes, you’re an artist. But you also need to get paid.
If you’re not going to enforce that right, someone will take advantage of it.
What’s the difference between a design and a photo of the design?
It can be confusing. A print is different than a painting is different than a PDF is different than that design put on a product.
You just have to understand how this works.
Look into DMCA takedown notices - big websites like Etsy and Shutterfly have them. You can send it wherever the infringing work is and it’s usually taken down immediately.
That’s why the DMCA exists in theory - no one should be getting sued over this.
No one anticipated that we would live in a world where a photograph could go around the world instantly.
If I am a sole proprietorship and then I want to be LLC, what do I do with all of my registered copyrights under my name?
You can just sign them in. You can transfer them to your LLC.
Luckily copyright registration is a bit more forgiving than a trademark. I would suggest having a lawyer look over your first few registrations to make sure you’re doing them right.
A trademark mistake would be huge.
As an artist - should you put more text on your website than the ©? Do we need to do more?
With each minor update and new copy on your website: that’s new copyright. The system does not work for the digital world but it’s what we have.
Remember, once it’s published it’s copyrighted.
And terms and conditions on our websites?
It would be good to have them because they can protect you in the long run.
It’s a security thing.
If you are taking user names, selling things, or getting emails you do need terms and conditions.
Most of you probably use third party providers like Mailchimp and Squarespace and they should do a pretty good job of handling it. But if you’re creating your own custom website you need to be aware of this.
At what point do you think these laws will be changing? The EU is leading in the ethical digital landscape. When do you think the US will follow?
The nice thing about the digital economy is that it’s essentially a borderless world. Once one jurisdiction passes something, the rest need to comply. Once GDPR passed that’s when you started seeing double opt-ins and cookie tracking warnings.
I think we are on the way and I think the pushback on big tech is on the way. But we just can’t keep up.
We are just learning what big companies are doing.
Like Facebook tracking everything we do on our phones! We don’t even know what these companies are doing. Public knowledge will always be several steps behind.
We’re not aware yet of the problems they’ve created.
We’ll see some push in data rights that will be long overdue.
What about trends and popular designs? You see very similar types of artwork - how do you know that you’re not infringing? Or are you just being ‘on trend’?
People for years have been copying my watercolor style. I looked into if I could I register my style, because so many have copied my style but not the actual paintings. I can’t register my style.
If the style starts to matter, brand it. The business solution is to make courses, teach people, make money off of that.
Brainstorm and figure out your options.
Lean on your legal counsel, your agent, and your tax accountant. Lean on your experts.
Fire the people that aren’t talking to you. Find an expert that will actually help you.
Should we have an LLC?
Yes, everyone should have an LLC. It can be Your Name, LLC. The benefit of registering is a barrier between your personal and business life.