Copyright Law for the Designer Illinois Institute of Technology: Institute of Design Presented by: Daliah Saper

INTRO Whether or not you know it, as designers and consumers, you encounter copyright issues all the time. At some point or anther you’ve probably asked: I found a really cool: film/video/music/photograph/text/game/ online---can I use it? What if I want to copy just a little part of that film/video/music/photograph/text/game…that’s ok, right? I heard you can use things in the “public domain”---what is that?

Trademarks and Copyrights are basically the same thing---right? More questions… Trademarks and Copyrights are basically the same thing---right? I got hired for a freelance project and got paid big bucks. The guy who hired me owns what I did right? Because he paid me? So I created a pretty cool: film/video/piece of music/text/game---how do I make sure that belongs to me? What happens if I collaborate with someone on a project? Do we both own the copyright? What’s “fair use?”

Some Background: The founding fathers wanted to encourage creativity so they created what is informally referred to as the patent, trademark, and copyright clause of the Constitution: “The Congress shall have Power To…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;” (Article 1, Section 8 in case you feel like reading it in your spare time.) The Copyright Act itself is a federal law that covers all the legal rules related to copyrighting.

What is a Copyright? A copyright gives an author or other creative person certain protections in their work as soon as the work is created. To get a copyright the author’s work must be: Fixed in a “tangible medium”—you have to be able to read it, see it, or hear it. For example, an impromptu speech that isn’t written down is not copyrightable. Original—you made it up all by yourself. Minimal creativity—the work is the product of at least a minimal level of creativity. (Pretty low standard)

What Kinds of Works are Protected? 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

Who usually seeks copyright protection? Some examples: DESIGNERS Artists for their paintings, drawings, sculptures, etc. Photographers Authors for novels, textbooks, plays, movies Business owners for manuals, website content, advertising, etc. Musicians for musical compositions Software Developers for their computer code Etc.

What Kind of Rights do Copyright Owners Get? Copyright owners enjoy the exclusive right to: reproduce the work 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 display the copyrighted work publicly in the case of sound recordings, to perform the work publicly by means of digital audio transmission in the case of a “work of visual art” the author has certain rights of attribution and integrity

Sounds Great! How do I get a copyright? You technically have a copyright as soon as you “fix it into a tangible medium” BUT, and this is a big BUT: You must register you work with the United States Copyright Office in order to enforce your rights.

Common Myths: Q: Isn’t putting a © symbol next to what I create enough? A: No…this just puts people on notice. You still need to register in order to sue. Q: What if I put my work in a self addressed envelope and mail it back to myself? A: No again. You still need to register your work in order to sue.

So how do I register? Depending on what you are copyrighting, you will need to fill out one of several forms available at www.copyright.gov The cost of a copyright application is $45.00. In some cases, you can register a series of works for one application fee.

Limited Duration: Copyrights do not last forever. Depending on the type of work, the copyright will last for 70 years after you die, or 120 years from its initial creation. Once the copyright expires, the work enters the “public domain.” Think the Mona Lisa…

Permission You will always need to ask permission to use any part of (even if it’s a little teeny itty bit) of a film/video/music/photograph/text/ game/ that’s not yours. Well…almost always.

When Can I get away with NOT asking for Permission? Works for which the copyright has expired. (tough to figure out unless its really really old) Works clearly and explicitly donated to the public domain. Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or spontaneous speeches or performances that have not been written or recorded). Works consisting entirely of information that is common property and contains no original authorship (for example, standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

Titles, Names, Short Phrases and Slogans = Trademarks Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents are NOT protected by copyright. This is what trademark law is for. A trademark, unlike a copyright, is a source identifier. The owner of a trademark gets a totally different set of rights than those granted to a copyright owner.

Ideas, Procedures, Methods, systems, etc. = Patents Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration are NOT protected by copyright. This is what patent law is for.

What is “Fair Use”? Sometimes you can use copyrighted work for the purposes of: criticism, commentary, news reporting, teaching, scholarship, or research.

Factors used to determine Fair Use The factors used to determine whether your copying constitutes fair use include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. the nature of the copyrighted work. the amount and substantiality of the portion used in relation to the copyrighted work as a whole. the effect of the use upon the potential market for or value of the copyrighted work.

Don’t rely on Fair Use Just because you may have a fair use defense, doesn’t mean you’ll want to test it. This is a very fact heavy defense….. Law suits are expensive. If possible: ask permission!

Lets talk about joint works A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. The authors of a joint work are co-owners of copyright in the work. Joint Ownership has serious implications…

More specifically…. Each co-author will own an equal ownership share in the work. This will occur even if one of the co-authors has contributed a greater quantity of the work than the other co-authors. Each co-author will own an "undivided" interest in the entire work. Any co-author, without the permission of their fellow co-authors, may grant non-exclusive rights to the work to third parties. (However, a co-author may only grant exclusive rights to the work to third parties if the co-author obtains the prior consent of the other co-authors.)

Each co-author has a duty to account to the other co-authors for any profits obtained from the exploitation of the work. A co-author has the right to assign his/her ownership share in the work to a third party or to bequeath his/her ownership share to his/her heirs. Each co-author will be entitled to equal authorship credit for the work upon its publication.

Get a collaboration agreement in place The best way to sort out joint ownership is through discussion and agreement at the start of a project. Figure out who owns what and how $$$ will be distributed based on the contribution.

Employee vs. Independent Contractor Now its time to discuss ownership rights when you a) work for someone and b) when you work for yourself.

What is a “Work Made for Hire” The Copyright Act defines a “work made for hire” as: (1)  a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work: as a part of a motion picture as a part of other audiovisual work,  as a translation,  as a supplementary work,  as a compilation,  as an instructional text,  as a test,  as answer material for a test, or  as an atlas

Employees As an employee, any work you create, within the scope of your employment is automatically owned by….. YOUR EMPLOYER. No extra paperwork needed.

Employee The implications of this: Since your employer owns the work, you can’t then use what you created later at a new job…or even to post on your website or to include in your portfolio. You can only do these things if you: GET PERMISSION.

What if I’m a freelancer If you are creating work as a freelancer, you are probably being hired as an INDEPENDENT CONTRACTOR. The person hiring you doesn’t pay your health insurance, your employment taxes, etc.

Independent Contractor As an independent contractor, you retain ownership of everything you create. This is true even if the client pays you for the work.

Work for Hire Agreement A smart client will ask you to create the work as a “work-made-for-hire.” That way, even though you created the work, the client owns the copyright.

Work for hire..continued A lot of the times, the commissioned work doesn’t exactly fit the “work-for-hire” requirements. In that case, the client will ask you to “ASSIGN” your rights---in writing.

Assignment vs. Licensing Assignment means you give the client ALL of your copyrights. If you don’t want to give up ALL your rights, you may LICENSE part of your rights.

Implied License to Use What happens if you get hired to create something, but you never sign a written agreement? Can you prevent the client from using your work if you are mad at him---or if he doesn’t pay you? Probably NOT under Copyright Law.

Implied License to Use Courts, based on the conduct of the parties, will usually find that the client was granted a non-exclusive license for the intended use. You’d have to pursue this under a breach of contract claim, if you don’t get paid for your work.

Case Studies and War Stories Artist using pictures of works in the public domain—from postcards purchased at the Art Institute. Documentary Film using the song “Happy Birthday”

Continued… Using photographs on Facebook for advertisements. (Rights of Publicity issues.) Photographer for Trump Tower—poor licensing contract. Neotick vs. Eagle Seven, LLC—copyright infringement case involving software.

Continued Pipeline Publishing, LLC v. Proxy Magazine Dietary supplement site using personal trainers photos and text. Fashion Designers….

Any Questions? Go to www.saperlaw.com Call Daliah at: 312.641.1551.