Unit 2: Intellectual Property - Orthelious/PDCP_F19 GitHub Wiki

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Intellectual Property

...Or Making, Taking, Hacking, Modding, Sharing, Altering, Integrating, Stealing, Borrowing, Lending, Remixing, Buying, Selling or Doing Someone A Solid... With The Things That You Create.

As creative practitioners, we all participate in the act of intellectual property creation. Whether that’s for our own personal work, as part of our professional practice, or in service to an employer or client. But what is intellectual property?

In this unit we will cover the legal definitions of IP, the rights that you have, and IP protections such as patent, trademark, and copyright. From there, we will discuss how to share and monetize IP as a method for generating income. We will also explore the ways in which we can change, alter, rip, pirate, destroy, remix and recreate the work of others as a part of our creative process.

Chapters

  1. Introduction to Intellectual Property
  2. IP Protections and Artists Rights
  3. Licensing and Royalties
  4. Permissions, Derivatives, and Fair Use

Chapter One: Introduction to Intellectual Property

In brief, this chapter is a primer on what constitutes intellectual property, the rights that you have, and how to IP can affect your practice.

Three topics in this chapter:

A. Defining Intellectual Property
B. The Big Three in IP: Patent, Copyright, Trademark
C. Why it's important to understand IP

A. Defining Intellectual Property

A1 — Basic Definition of IP

From Merriam-Webster:

Intellectual Property: property (such as an idea, invention, or process) that derives from the work of the mind or intellect; also : an application, right, or registration relating to this.

I'm going to use the term IP interchangeably with that of IP protections (the application, rights and registration). This will make more sense in chapter two.

A simple definition:

  • The result (work or invention) of creativity.

IP also refers to:

  • The rights, priorities and privileges associate with your work.
  • The categories of laws and regulations that prevent unauthorized use of your work by others.

Much like physical property, IP can be created, owned, traded, destroyed, transferred, stolen, borrowed, etc. The key distinction here is that it is property that is generated of the intellect...

Tim & Eric Awesome Show, Great Job! Episode 3 of season 4

...and thus needs it's own set of rules, guidelines, and regulations. IP helps define all of the ideas, processes, and plans closely tied with a piece of property, but that could also be separated from the physical property itself.

A2 — The Origins of IP

"Everything is a Remix Part 4: System Failure" by Kirby Ferguson gives us a concise overview of where IP comes from:

Disclaimer: I don't endorse with the position the author makes towards the end of the video.

B. The Big Three in IP: Patent, Trademark, and Copyright

There are a few, less common categories of IP in US law (like plant species!) For the purposes of this course, we're going to discuss the three primary types of IP:

1. Patents — Protections for specific inventions and related processes.

» What does a patent protect?

  • Processes, methods and inventions that are “novel,” “non-obvious,” and “useful.”
  • A patent cannot protect a idea on its own. The idea must be part of something recognizable and distinct.
  • Patents can apply to: processes and methods; a manufactured article (object); a new composition (of matter); an asexually and new variety of plant.

2. Trademark — Protections for names, phrases and symbols used in commerce.

» What do they protect?

  • Names, phrases, images that represent a product and distinguish it in commerce.
  • Includes Trade Dress (visual appearance of a product) and Service Marks (Identifies a service as opposed to a product.)
  • Basically, trademarks protect brands.

3. Copyright — Protections for “original works of authorship.”

» What do they protect?

  • “Original works of authorship.”
    • Which include: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works; computer programs (sometimes the graphical user interface) and websites.
  • Ideas and concepts on their own do not have copyright
    [Why would this be true?]

We will go over each of these in much greater detail in chapter two

C. Why it's important to understand IP

Your practice will be more successful if you understand:

  • The difference between the IP that you do and do not own.
  • How to utilize the IP of others.
  • How you can protect your work.
  • How you can defend yourself and your work.

C1. Examples In Creative Practices

— A few fun websites that touch on the topic of cheap knockoffs, direct ripoffs or things that can't just be coincidence.

— Tom Wait's "Step Right Up" & Dorito's

"When Tom Waits Sued Frito-Lay Over a Doritos Ad" Mental Floss

When Tom Waits, gravely voiced songwriter, heard his music impersonated in a Dorito's ad he decided to take the parent company Frito-Lay to court. The court found in his favor, to the tune of 2.6 million dollars.

Tom Waits

Listen for yourself:

— Shepard Fairey's "Hope" and the Associated Press

"Shepard Fairey and The A.P. Settle Legal Dispute" - The New York Times

Shepard Fairey created an distinct and iconic "Hope" campaign of President Barack Obama. The issue is that the poster uses, in a sigificant manner, the photograph taken by AP Photographer Mannie Garcia.

Obama Hope Images

— Heather Dewey-Hagborg's "Stranger Visions"

Heather Dewey-Hagborg's highly influential work "Stranger Visions" is well known in the bioart and new media art circles (and in contemporary art in general). Which is why, when a ad campaign launched in Hong Kong ripping off the work, a number of people noticed.

strangervisions

HongKongCleanup

"Creepy Ads Use Litterbugs' DNA to Shame Them Publicly" · WIRED Magazine

— The 'FIRST' AI-Generated Painting Sold at Auction

When Christie's put "Portrait of Edmond Belamy" by French trio Obvious up for sale, the auction house was excited to claim the first AI-generated artwork sold at auction. But many have pointed to the work of 19-year-old Robbie Barrat's open-source code was used substantially to create the pirnt, and without credit to Barrat.

AIPaintints

— Laurie Spiegal's "HARMONICES MUNDI"

When composer Laurie Spiegal's work was to be included on the famous Golden Record—a collection of music and sounds put together by Carl Sagan and lauched on the Voyager spacecraft—she was handed a contract from NASA regarding rights to the work. It had this interesting clause:

Spiegal, a badass, crossed off "throughout the world" from the contract. NASA signed, giving the space agency the rights to her music—but only off-world.

Spiegal

— LED ZEPPELIN'S "BRING IT ON HOME"

We're going to return to Kirby Ferguson's "Everything is a Remix" for a look at how famed rock group Led Zeppelin took advantage of less-empowered musicians.

Everything is a Remix · Kirby Ferguson

— George Harrison's "My Sweet Lord"

One of the most famous copyright cases in popular culture, George Harrison was sued for 'unconciously copying' the Chiffon's "He's so fine."

Here's a great side-by-side comparison of the two songs:
My Sweet Lord vs. He's So Fine

— John Fogerty Gets Sued for Sounding Too Much Like Himself

John Fogerty, of Creedence Clearwater Revival, made some bad deals early in his career. Including signing over the rights of CCR's catalogue to the group's recording company. So, he was understandly pissed off when the company holding the rights came knocking years later and sued Fogerty for copyright infringement... for sounding too much like CCR... too much like himself.

"The Time John Fogerty Was Sued for Ripping Off John Fogerty" · Mentalfloss

— The Dollop and Damn Interesting

American History podcast The Dollop discusses a different topic of history each week. But Alan Bellows, of the website Damn Interesting, felt that their use of his material went far beyond fair use into the realm of plagiarism.

"How a Comedy Podcast Sparked a Plagiarism Debate" - Plagiarism Today

— ESG and the Importance of Paying Royalties

"ESG's Otherworldly Sound" — The New Yorker

ESG's track "UFO" has been sampled for over use in over 500 songs (Who Sampled: UFO). The sample is considered formative in the development of Hip Hop, but the group, comprised of four African-American sisters from the South Bronx, spent more than two decades chasing down royalties.

— "Old Town Road" and a thirty dollar beat

Let's end on a positive note.

Lil Nas X's runaway hit "Old Town Road" is built off of a beat by 19-year-old YoungKio—which LNX purchased a license of on the platform Beatstars for $30. The license included limited distribution rights. Rather than fight YoungKio, Lil Nas X renegotiated the contract with YoungKio choosing the highlight YoungKio's contribution.

The result was an explosion of sales for YoungKio which led to a contract with Universal Music Group.

We should all take Lil Nas X's example to heart:

  • He paid for a sample
  • He celebrated the contribution of others
  • He renegotiated a deal so he could still benefit
  • His approach to success led to the success of others

It's an impressive lesson in good IP ethics from a 20-year-old.

"‘Old Town Road’ is now the longest-running No. 1 song—and the beat Lil Nas X used only cost $30" - CNBC

Chapter 2: IP Protections and Artist's Rights

Back to Table of Contents

Four sections to this chapter

A. Patents
B. Trademarks
C. Copyright
D. The Visual Artists Rights Act

In chapter one we covered the high level basics of the three primary types of IP protections: Patents, Trademarks, and Copyrights. In this lecture we will cover the process of how to obtain each of these protections and delve into what specifically each IP type protects.

» Relevant IP-related items we will cover in future units include:

  • How to take legal action.
  • Takedown notices and cease-and-desist letters.
  • Specific IP laws like the Digital Millennium Copyright Act
  • Pricing and structures for licenses
  • Essential contract elements for a licensing agreement

Additionally, in this chapter we will touch on the Visual Artist Rights Act, a federal law with an interesting origin.

» A few notes

  • IP protections ≠ Prerequisites to creation
  • Remember that correct answers ≠ Right answers
  • This lecture only covers United States law. I do not have the time nor expertise to cover international IP laws and regulations.
  • I am not a lawyer. Take what I say with a grain of salt. I’m more like a... swimming pool lifeguard.

A. Patents


Parody Patent Drawings Highlight Silicon Valley Greed · Vice

A1 — Defining Patents

» Our quick definition

Patents — Protects specific inventions and related processes.

» A more detailed definition

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO. USPTO(https://www.uspto.gov/patents-getting-started/general-information-concerning-patents)

A2 — Key Government Agency

United States Patent and Trademark Office

For obtainning patents, the USPTO is the federal agency you have to work with. They actually have a really great resources and learning portal if you'd like to go deep with learning about the patent process.

From their website:

The United States Patent and Trademark Office (USPTO) is the federal agency for granting U.S. patents and registering trademarks. In doing this, the USPTO fulfills the mandate of Article I, Section 8, Clause 8, of the Constitution that the legislative branch "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The USPTO registers trademarks based on the commerce clause of the Constitution (Article I, Section 8, Clause 3). Under this system of protection, American industry has flourished. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The strength and vitality of the U.S. economy depends directly on effective mechanisms that protect new ideas and investments in innovation and creativity. The continued demand for patents and trademarks underscores the ingenuity of American inventors and entrepreneurs. The USPTO is at the cutting edge of the nation's technological progress and achievement.

The USPTO advises the president of the United States, the secretary of commerce, and U.S. government agencies on intellectual property (IP) policy, protection, and enforcement; and promotes the stronger and more effective IP protection around the world. The USPTO furthers effective IP protection for U.S. innovators and entrepreneurs worldwide by working with other agencies to secure strong IP provisions in free trade and other international agreements. It also provides training, education, and capacity building programs designed to foster respect for IP and encourage the development of strong IP enforcement regimes by U.S. trading partners.

A3 — What is a Patent?

  • A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office.
  • US patents only apply within the United States and US territories.
  • Patents grant the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.
    • A Patent is not a right to make, but a right to exclude.

A4 — What patents protect

  • Processes, methods and inventions that are “novel,” “non-obvious,” and “useful.”
  • A patent cannot protect a idea on its own. The idea must be part of something recognizable and distinct.
  • Patents can apply to: processes and methods; a manufactured article (object); a new composition (of matter); an asexually reproducing and new variety of plant.

A5 — Types of Patents

  1. Utility Patents — invention or discovery of any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.
  2. Design Patents — Granted to anyone who invents a new, original, and ornamental design for an article of manufacture
  3. Plant patents — Granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

A6 — Time-restrictions for Patents

  • The term of a patent is 20 years.
  • Under certain circumstances this can be extended.

A7 — The Patent Process

  1. Determine if your invention is patentable (Novel, Non-Obvious and Useful).
  2. Conduct a search for prior patents or public disclosures (i.e. Has it already been patented by someone else?)
  3. Determine the type of patent you need (Utility, Design, or Plant)
  4. File an application with the US Patent and Trademark Office and pay the fee. (A patent lawyer is strongly encouraged)
  5. Work with an examiner, who will review patent application. (USPTO)
  6. If approved, maintain your patent (For example: there are maintenance fees)

B. Trademark


Artist Imagines How McDonalds Would Look If Nazis Opened It In Hell · Bored Panda

B1 — Defining Trademarks

» Our quick definition

Trademark — Protects names, phrases and symbols used in commerce.

» A more detailed definition

A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks that are used in interstate or foreign commerce may be registered with the USPTO. USPTO(https://www.uspto.gov/patents-getting-started/general-information-concerning-patents)

B2 — Key Government Agency

United States Patent and Trademark Office

Trademarks are the other primary responsibility of the USPTO. Just like patents, the USPTO has a lot of great resources on their website.

B3 — What is a trademark (or service mark)?

  • 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.

B4 — The Trademark process

  • Similar to the Patent Process, you must register trademarks through the US Patent and Trademark Office.
  • The most important part of applying for a Trademark is the consideration step. Consideration refers to determining if the mark:
    • Is a “strong” or “weak” mark
    • Is likely to be confused with other marks
    • Similarity to other marks
    • and many more!

The idea of a mark being distinct goes way beyond "Does the logo look the same?" Let's look at some examples of distinguishing marks from a USPTO guide:

» For a the full explanation on Trademark Considerations, see the full guide from the USPTO.

C. Copyright


Monkey does not own selfie copyright, appeals court rules · CNN

C1 — Defining Copyright

» Our quick definition

Copyrights — Protects “original works of authorship.”

» Our more detailed definition:

Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress. USPTO(https://www.uspto.gov/patents-getting-started/general-information-concerning-patents)

C2 — Key Government Agency

U.S. Copyright Office

C3 — What does a copyright protect?

  • “Original works of authorship.”
  • Which include: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works; computer programs (sometimes the graphical user interface) and websites.
  • Ideas and concepts on their own do not have copyright protection.

C4 — What are the rights of a copyright owner?

  • Reproduce the work in copies.
  • Prepare derivative works based upon the work.
  • Distribute copies of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.
  • Perform the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work.
  • Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.
  • Perform the work publicly by means of a digital audio transmission if the work is a sound recording.

C5 — What is not covered by a copyright?

  • Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
  • Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down)
  • Titles, names, short phrases, and slogans
  • Familiar symbols or designs
  • Mere variations of typographic ornamentation, lettering, or coloring
  • Mere listings of ingredients or contents

C6 — Who can claim copyright?

  • The author(s) of the work.

  • For joint authors:

    • If works are combined into a single work, joint authors share equal ownership.
    • If authors contribute to a collective work, each author retains the right to their individual contribution.
  • Works-for-hire (i.e. parties that pay for the work to be made)

    Two types of work-for-hire to be aware of:

    • A work prepared by an employee within the scope of [their] employment
    • A work specially ordered or commissioned for use

C7 — How do I create a copyright for my work?

  • Surprise! Copyright exists automatically in an original, finished work.
  • The work must be in a fixed, tangible medium.

Then why would copyright registration exist?

  • Copyright registration enhances your already existing rights.

» Reasons to register:

  • To bring a copyright infringement case to court, your work must be registered.
  • To sue for statutory damages ($$$), your work must be registered.
  • You can only sue for the attorney’s fees and costs of litigation if your work is registered.

» How to register:

  • Complete a filing form with the US Copyright Office.
  • Give them a non-refundable filing fee.
  • Send in copies of the work (i.e. samples, photos, etc.)

C8 — Term of a Copyright


"How Mickey Mouse Keeps Changing Copyright Law" - Art Law Journal

  • For an individual: Life of the author + 70 years
  • For works-for-hire: 95 years from publication or 120 years from creations. Whichever is shorter.
  • Copyrights, like physical property, and can be inherited or transferred, but this doesn’t restart the clock on the term of the copyright.

D. The Visual Artists Rights Act


VARA was enacted in the wake of the "Tilted Arc" controversy of 1990.

D1 — What is VARA?

  • A 1990 Act of Congress granting additional protections specifically for categories of visual art.
  • Before this act, artists in the United States had virtually no power to protect their work from mutilation, misattribution, or destruction.
  • VARA assigns “Moral Rights” in addition to Copyrights.

D2 — VARA Moral Rights:

  • Disclosure or divulgation, which allows the artist to determine when a work is complete and may be displayed.
  • Paternity or attribution, which allows an artist to protect the identification of their name with their own work, and to disclaim it when applied to another’s.
  • The right of withdrawal, which permits the artist to modify or withdraw a work following publication.
  • Integrity, which allows the artist to prevent their work from being displayed in an altered, distorted, or mutilated form.

D3 — What kind of art does VARA cover?

  • Very limited categories of fine art.
  • VARA covers: Paintings, sculptures, drawings, prints, still photographs produced for exhibition.
  • Within this group, only single copies or signed and numbered limited editions of 200 or less are actually protected.

D4 — How long does VARA last?

  • The lifetime of the author.
  • For multiple authors, on the the death of the last author.

D5 — Fun loophole!

  • Under VARA (unlike copyright infringement), an artist has a cause of action in a federal court even if their artwork is not registered with the Copyright Office.

Chapter Three: Licensing and Royalties

In chapter one and two, we covered the protections that are available for a creative practioners work. But what if we want to share our work without selling the entire thing? And how can we utlize the work of others?

In the realm of intellectual property, this is where the concept of licensing comes in. Licensing provides just one of the pathways to using someone else's work.

Three sections in this chapter:

A. Licenses
B. Royalties
C. Elements of an licensing and royalty agreement

A. Licenses

A1 — Quick Definition

License — A grant by the holder of a copyright or patent to another of any of the rights embodied in the copyright or patent short of an assignment of all rights. Source(https://www.merriam-webster.com/dictionary/license)

What does a license do?

  • Licenses are basically ‘permissions for use.’ They allow a rights holder to let someone else yse their work in a limited capacity.
  • Licenses are a type of agreement. Much like everything else in this class, a license should be locked into a contract of some kind.
  • They are based on the concept of divisibility. The Copyright Act of 1976 allows copyright holders to grant narrowly defined licenses (i.e. permissions) dividing up the rights of their copyrighted works.
  • Licenses can apply to Patents, Copyrights and Trademarks.

Think of licesing as granting a ‘limited copyright’ to someone else.

Resource: "Licensing Your Art" · artbusinessnews.com

A2 — Rights a license can grant

  • Reproduce the work in copies.
  • Prepare derivative works based upon the work.
  • Distribute copies of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.
  • Perform the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work.
  • Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.
  • Perform the work publicly by means of a digital audio transmission if the work is a sound recording.

Look familiar? These are the same as the rights that are conferred by trademarks, copyrights and patents to the rights holder. The difference is, while you retain all of these rights as the creator, you can pick and choose what specific rights you want to license.

You have the power!

B. Royalties

B1 — Quick Definition:

Royalty — A payment to an author or composer for each copy of a work sold or to an inventor for each item sold under a patent.

What is the difference between a royalty and a license?

  • License = The permission
  • Royalty = The payment

A license grants permission to use the IP. The royalty is the payment for that use. This, my friends, is how you can monetize your work beyond standard sales.

B2 — Royalty Examples

There are endless ways that one can set up a royalty. To start off, here are just a few examples of royalty arrangements:

  • Per Unit— You receive a percentage of the sale of each unit.

    For example, the percentage a musician receives each time their song plays on spotify.

  • Net Sales — You receive a percentage of total sales.

    For example, your agent sells hundreds of your prints of all different sizes. Rather than assign a different, unique percentage per artwork, you agree to a 10% take of the final sales total.

  • Guaranteed Minimum — Regardless if the merchandise sells or not, you are paid a guaranteed minimum payment.

    For example, you license a photo to be reproduced on bucket hats with a guaranteed minimum of $100. Then bucket hats go out of fashion and the company can't sell any—you will receive your minimum regardless.

  • And many many more.

Please remember that these are just starting points. Things get complex when you start examining how licenses and royalties apply across different creative practices.

Royalties can get very complex and do not always serve the creator's needs. For example: Ending a Seven-Year Dispute, a US Court Rules That Artists Aren’t Entitled to Royalties for Artworks Resold at Auction · ArtNet

C. Elements of a license and royalty agreement

Now that we have a grasp of how a license can work, what does a licensing agreement look like?

Well, they can look like anything. Some are 40 long, some are just an email. We're going to cover contracts in-depth in our Legal Agreements unit, but let's discuss some of the best practices for licensing agreements.

C1 — Mutual Protection

License and royalty agreements acutally protect both parties

  • The licensor (IP owner) has their copyright protected from misuse and is paid for the use of their IP

  • The licensee (Buyer) is protected from claims of improper use by the licensor, as the terms for use are spelled out in the agreement.

C2 — Essential elements of a licensing and royalty agreement:

  • Purpose of license — Which of your copyright(s) are you granting them? (For example: allowing someone to create derivative works.)

  • Scope and Limitations of Use — What limits are place on the use? Is it a one-time use for a specific reproduction? Is it a world-wide license? Are there limitations to how many copies or reproductions?

  • Term — Time period of the license. Is it a one-time license? Perpetual?

  • Consideration — Flat fee? Royalty (percentage of sales)? A combination? How will you get paid and how often?

  • Exclusivity — Is this an exclusive or non-exclusive license?

  • Attribution and Display — How will you be credited? How will the work be displayed?

  • Termination (We’ll cover this in the Contracts Unit)

  • Indemnification (We’ll cover this in the Contracts Unit)

  • Arbitration (We’ll cover this in the Contracts Unit)

Chapter Four: Permissions, Derivatives, and Fair Use

OK, so up to now it would seem like the only way to use someone's work is to pay for it or just steal it—but there is another way

If intellectual property was so absolutely restricted that the only way to use it was to pay—creative practices would come to a halt. Luckily, there are a variety of options availble to us.

Sections in this chapter:

A. Transference
B. Derivative Works
C. Open Source and Public Licenses
D. Fair Use
E. The Public Domain

A. Transference

The idea behind transferrence is that you are literally giving all of the rights to someone else.

A quick definition:

Transfer — The act of assigning the rights to a piece of intellectual property belonging to one party, through written instrument, to another party.

What is transference?

  • The act of giving your full IP rights away to another party.
    • The rights to Patents, Copyrights, and Trademarks can all be transferred to another party.
  • This should be done via a written, legal agreement.
  • This is common in Work-For-Hire agreements. When the contract is complete, the IP is transferred over to the principal.
  • Moral rights (VARA), however, cannot be transferred, but they may be waived.

Why would this be useful in a creative practice?

B. Derivative Works

Derivitive works are a tricky category. How much you change the original work really affects whether or not you're allowed to use the IP.

B1 — Defining Derivitive

A quick definition:

Derivative Work — A derivative work is a new, original product that includes aspects of a preexisting, already copyrighted work. Also known as a "new version," derivative works can include musical arrangements, motion pictures, art reproductions, sound recordings or translations. They can also include dramatizations and fictionalizations, such as a movie based on a play. Source(https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law)

What are some examples of derivative works?

  • A motion picture based on a play or novel
  • A translation of an novel written in English into another language
  • A revision of a previously published book
  • A sculpture based on a drawing
  • A drawing based on a photograph
  • A lithograph based on a painting
  • A drama about John Doe based on the letters and journal entries of John Doe
  • A musical arrangement of a preexisting musical work
  • A new version of an existing computer program
  • An adaptation of a dramatic work
  • A revision of a website

Resource: Copyright in Derivative Works and Compilations · US Copyright Office

B2 — Compilations

Compilations differ from strictly derivative works. Rather than an entirely new, original product, compilations are often arrangements or coordinations of prior works and their ability to be copywritten depends...

Here's a definition from the US Copyright Office: (Emphasis mine)

Compilations of data or compilations of preexisting works (also known as “collective works”) may also be copyrightable if the materials are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes a new work.

When the collecting of the preexisting material that makes up the compilation is a purely mechanical task with no element of original selection,coordination, or arrangement, such as a white-pages telephone directory, copyright protection for the compilation is not available.

Some examples of a compilation could include an album of songs by different artists, an exhibition of visual artworks, or a festival of short plays.

What are some examples of compilations?

B3 — Who can create derivative works?

Well, anyone can create a derivative work, but whether or not you have a right to make that derivative is what is at stake here.

  • Copyright owners have the exclusive rights to create derivative works.
  • Permissions can be granted to other parties to make derivative works through—you guessed it—licenses! But these licenses do not neccessarily need to be a paid license.
  • This does not apply to cases of Fair Use (discussed later)

B4 — How does copyright law treat derivative works?

Just because you gain permission to create a derivative work, does not mean you automatically gain copyright protection.

In the case of derivative works:

  • If you obtain permission to use copyrighted material from the owner (via a license), this does not mean you obtain the copyright to the original IP.
  • Likewise, the original copyright of licensed material does not extend to your derivative work. i.e. the licensor cannot claim ownership of the licensee's work.
  • Derivative works can obtain their own copyright for original elements, but they do not reset the expiration clock on the original material's copyright

C. Open Source and Public Licenses

Creating individual licenses for each specific use of your IP can a cumbersome process. This bureaucracy also slows down the creative process significantly as obtaining permissions can be a months-long to years-long process.

Additionally, you may want to open your work up to use by others for free, but only for certain types of use.

One solution is to use a public license — essentially a stamp that declares how your work may be used without needing explicit permission for each use.

C1 - Public Licenses

One of the most commonly used is Creative Commons.

Here some examples of their licenses:

  • Attribution — This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.

  • Attribution-NoDerivs — This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

  • Attribution-NonCommercial — This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.

Source: Creative Commons

C2 — Open Source Licenses

Free public licenses are especially important for software and technology creation. Because of the complexities of these technologies, sometimes a more robust public license is needed.

These are just two of the most common open-source licenses for open source software:

A more robust list can be found on opensource.org.

D. Fair Use

But what if I don't want to go through all this work and I just want to use someone's work?! Does it have to be so complicated? How does anything get done on time with all this paperwork?

It's ok pal, we're working our way to more and more open forms of IP use. An extremely important method is FAIR USE.

A quick definition:

Fair Use — Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. source(https://www.copyright.gov/fair-use/more-info.html)

An important note: Fair Use is not an automatic right to use. It is a defense that can be used when accused of infringement.

Let's watch a video: Everything is a Remix: Fair Use

Everything is a Remix: Fair Use

There's also this terribly hard to watch, but entertaining video: A Fair(y) Use Tale

There four factors of fair use:

  • The purpose and character of your use.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion taken.
  • The effect of the use upon the potential market.

Here are a few famous examples of Fair Use cases from artistrights.info:

RESOURCES!

The website New Media Rights has a plethora of guides on fair use and copyright restrictions.

Check them out here.

E. The Public Domain

Finally, we reach the public domain. The place where, after patents and copyrights expire, the IP goes to live.

A quick definition:

Public Domain — the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone. source(https://www.merriam-webster.com/dictionary/public%20domain?utm_campaign=sd&utm_medium=serp&utm_source=jsonld)

It's FREE USE

What does it mean when IP enters the Public Domain?

  • Intellectual property that belongs to and is available to, the public as a whole.
  • IP enters the public domain when protection terms have expired or the rights have been waived.
  • You can use work in the Public Domain without any licenses or prior permission, but there is a creative commons license avaialable.
  • You cannot claim ownership of items in the public domain! But elements of your derivatives may fall under copyright protection and thus you would have rights to it.