Attorneys in this field assist clients with issues related to film, television, music, publishing, and digital media, ensuring compliance with the complex web of laws that apply to the entertainment industry. They are involved in activities ranging from negotiating contracts to defending intellectual property rights, with the objective of protecting their clients’ creative endeavors and commercial interests.

Given the multidisciplinary nature of entertainment law, practitioners often have expertise in related areas such as intellectual property law, which is fundamental in protecting trademarks, copyrights, and the right of publicity among other aspects.

Lawyers in the entertainment sector guide their clients through the intricacies of federal and state laws, industry-specific regulations, and the precedents set by historic legal cases.

Career paths in entertainment law are diverse, with opportunities in both litigation and transactional law. 

Recommended classes for students include corporations, copyrights, trademarks, administrative law, constitutional law, secured transactions, alternative dispute resolution, art law, entertainment law, international law, licensing, media law, and legislation.

Professionals within this field work with a variety of clients—from individual artists and performers to large production companies.

To effectively navigate the developing landscape of the entertainment industry, entertainment lawyers must stay abreast of current trends and legal developments, whether they are dealing with the development and financing of projects or handling disputes that arise from the multifaceted interactions within the media spectrum.

Fundamentals of Entertainment Law

Entertainment law encompasses a broad area, focusing on various legal disciplines as they apply to the entertainment industry.

Key components include corporations, copyright, contracts, trademark, and rights to publicity, each upholding the complex interactions between creators, distributors, and consumers.

Corporations Principles

Corporations is generally the study of legal business entities, which are often used by artists and entertainers for two primary purposes:

1. As a loan out company, which serves as a personal company for talent and generally provides liability protection, and corporate tax treatment for income.
2. As a legal instrument, it assembles capital for either a (i) special purpose entity (SPE) such as a motion picture production or (ii) joint business venture (JBV) between two talents and/or their respective loan out companies.

Finance Basics

How your company is capitalized often dictates what type of business entity will form. Capital can generally be raised in two forms:

1. As debt using legal instruments called loans or similar;
2. As equity by selling passive interests in the company.

Whether you choose to apply for a loan or sell equity is a decision to be made with a qualified small business attorney like Attorney Morin. Attorney Morin has taught corporate finance and private securities principles to non-lawyer pupils for her alma mater, Georgia State University College of Law’s Entertainment, Sports, and Media Law Initiative (2018-2019).

Copyright Principles

Copyright law is indispensable in the entertainment sector, protecting original works of authorship, such as films, music, and books.

A copyright gives the creator exclusive rights to use, reproduce, and distribute their work. Notable aspects include:

– Duration: Generally lasts for the life of the author plus 70 years post-mortem.

– Fair Use Doctrine: Allows limited use of copyrighted material without permission for purposes like criticism, education, or parody.

Contract Basics

Contracts form the legal backbone of entertainment transactions. These binding agreements govern relationships and terms between parties, such as artists and record labels or actors and studios. Crucial contract elements consist of:

• Offer and Acceptance: Indicates a clear agreement between parties.
• Consideration: Something of value must be exchanged.

Trademark Fundamentals

Trademarks in entertainment protect brand names, slogans, and logos. They are essential for marketing and distinguishing products or services. Key points to understand about trademarks include:

• Registration: Trademarks can be registered for stronger protection.
• Infringement: Unauthorized use that causes confusion among consumers can be challenged.

Right to Publicity

The right to publicity prevents unauthorized commercial use of an individual’s name, image, or persona.

This aspect of law is particularly significant for celebrities and public figures who wish to control the commercial use of their identity. Notable implications are:

• Varies by State: Recognition and scope differ depending on jurisdiction.
• Postmortem Rights: Some jurisdictions extend rights beyond death.

Entertainment Contracts

Entertainment contracts are the legal backbone of the media and entertainment industry, defining the business relationships and terms between the entities involved.

These contracts must be clear to avoid disputes and protect the interests of all parties.

Talent Agreements

Talent agreements are fundamental contracts that outline the relationship between artists and entities such as production companies or labels.

These agreements cover compensation, credit, roles and responsibilities, and often include specifics about the use of the artist’s image or performances.

The details of entertainment law contracts are crucial in establishing expectations and boundaries in these artist-entity relationships.

Licensing Agreements

Licensing agreements grant permission to a party to use certain intellectual property owned by another party within predefined limits.

In the entertainment industry, this often relates to music, characters, or branded content. Key terms typically include the scope of use, territorial limitations, licensing fees, and duration of the licensing agreement.

Distribution Deals

Distribution deals are agreements between content producers and distribution companies that specify how and where the content will be made available to audiences.

Essential components of a distribution deal include territorial rights, platforms for distribution (such as television, streaming services, or cinemas), revenue-sharing models, and marketing obligations.

These deals ensure that content reaches its intended audience while providing producers with an avenue for revenue generation.

Intellectual Property in Entertainment

Intellectual property (IP) stands as a crucial asset in the entertainment industry, determining the control and distribution of creative content.

Effective management and enforcement of IP rights ensure that creators are compensated for their work.

IP Enforcement

In the entertainment sector, enforcing intellectual property rights is vital to prevent unauthorized use of content. Entities frequently engage in legal actions to address copyright infringement, trademark violations, and piracy.

The goal is to deter infringement and maintain the exclusive rights that drive the industry’s financial dynamics.

• Copyright Infringement: Creators often rely on legal counsel to monitor and litigate unauthorized reproductions.
• Trademark Violations: These can dilute the brand associated with entertainment products, requiring swift action.

Royalties and Profit Participation

Royalties and profit participation represent key income streams for artists and producers in the entertainment industry.

They are the financial expressions of the value of intellectual property, and accurately tracking them is crucial.

1. Royalties:
   • Paid to rights holders, such as songwriters, on a per-use basis.
   • Often, the rate is pre-negotiated and outlined in contracts.
2. Profit Participation:
   • Alludes to the sharing of profits among stakeholders following a project’s financial success.
   • It is typically more complex, involving gross or net revenue calculations.

Dispute Resolution

Dispute resolution in entertainment law is a multifaceted process that can range from litigation and arbitration to various negotiation and settlement strategies.

Litigation and Arbitration

Entertainment law disputes that progress to litigation often involve extensive legal proceedings with formal rules in a courtroom setting.

These cases may revolve around an array of issues, such as contract disputes, copyright infringement, and trademark issues.

It is not uncommon for entertainment law litigation to be high profile, attracting significant media attention.

Arbitration, on the other hand, offers a more private alternative where an impartial third party, the arbitrator, makes a binding decision.

Many entertainment contracts include arbitration clauses to handle disputes out of court, providing a confidential and often more expedient resolution.

Negotiation and Settlement Strategies

Negotiations in entertainment disputes are typically aimed at achieving an out-of-court settlement. Settlements can be faster, less expensive, and less public than litigation.

Effective settlement strategies may include the use of a mediator to facilitate discussion between parties. The goal is for each party to make concessions to reach a mutually satisfactory agreement.

Professionals in the industry often stress the importance of customizing dispute resolution clauses in contracts. This is done rather than treating them as standard boilerplate language.

This anticipatory approach can greatly influence the ease and success of future negotiations in the event of a dispute.

Entertainment Law in Practice

Now that you have an understanding of Entertainment Law and how it can assist you in your creative journey, we encourage you to book a free consultation with Morin Entertainment Law. From contracts to copyrights and everything in between, Attorney Morin is happy to help you ensure the success of your next creative endeavor.

The post From Contracts to Copyrights: What Every Artist (and Law Student) Needs to Know About Entertainment Law appeared first on Morin Legal.

The post Public Domain Basics: Understanding Copyright Limits and Freedoms appeared first on Morin Legal.

That’s why I aim to shed light on the powerful defense that is copyright law, providing you with the knowledge and tools to protect your intellectual property.

So, what exactly is copyright law? In a nutshell, it secures your original, tangible, and creative endeavors, granting you exclusive rights to your work and preventing others from claiming your work as their own.

I invite you to delve into the fascinating world of copyright law. Within this blog, you’ll discover:

• The importance of defending your content
• A comprehensive understanding of what content is eligible for copyright and what falls outside of its scope
• 5 effective strategies to fortify your intellectual property, ensuring its safety and integrity

Your Content Creation Benefits With Copyright Law

Just like having insurance, a strategy to protect your copyrights will ensure that you hold full control of your creation, from profits to recognized credit — and not anyone else. Because with all the time and energy you’ve invested into your work, it’s only fair and empowering that you take precautions to safeguard them.

These benefits include 6 exclusive rights to…

1. Reproduce your work: This allows you to make copies of your creation, and share your brilliance in multiple ways, reaching a wider audience.

For example, graphic designs, sculptures, custom-made jewelry, multimedia creations like websites and brochures, motion pictures, video games, music videos, object code, poetry, essays, short stories, comics, burlesque routines, and other choreography, ship hulls, drawings that can be transferred into textiles, or other forms of expressions. 

2. Create derivative works: Embrace the freedom to expand upon your original creation, exploring new artistic territories through adaptations, translations, or mesmerizing remixes.

3. Distribute your work: You have the authority to control the distribution and dissemination of your work to the public, ensuring that it reaches your target audience.

4. Perform or display your work*: The right to step into the spotlight and showcase your masterpiece publicly. This could be but not limited to live performances, captivating exhibitions, or cutting-edge digital platforms. 

a. The exclusive right to publicly perform your work only applies to: literature, music, drama, dance, pantomime, motion pictures, and audiovisual works. It does not apply to recorded music, which is limited to a right to public performance only by “digital audio transmissions” in the U.S. In other words, there are no performance royalties paid to artists or their record labels for U.S. radio play.

5. License or sell your work: Monetize your creation by granting licenses or selling the rights to others, securing financial rewards for your content creations.

The Types Of Intellectual Property Protection

Below you’ll find a list of the types of creative work that U.S. Copyright Law protects:

1. Literary works (e.g. object code, novels, poems, magazines, newspapers)
2. Musical works (e.g. songs with music and/or lyrics)
3. Dramatic works (e.g. plays, screenplays, teleplays, scripts)
4. Pantomime works and choreography
5. Pictorial, graphic, and sculptural works (e.g. jewelry, graphic design, visual arts)
6. Motion pictures and video games;
7. Sound recordings (aka all recorded music, whether analog or digitally captured)
8. Architectural designs
9. Designs of boat hulls and/or their decks

What Copyright Law Doesn’t Protect: Navigating the Boundaries

As powerful as Copyright Law is, it’s not the end-all and be-all — there are limits.

That’s where Fair Use comes into play, Fair Use allows limited use of copyrighted material without seeking permission from the copyright holder, typically for purposes such as commentary, criticism, education, or parody. 

Because Fair Use is an affirmative defense, the only way to know whether it is in fact, applicable, is to find out in court. But since no one wants to get sued or pay for court, the next best thing is to consult with a copyright expert like Attorney Morin, to get a Fair Use opinion for your company, or your insurance underwriter.

To get a better sense of how Fair Use affects you and your business, it’s recommended to consult a copyright expert like Attorney Morin to show you how to best go about approaching Fair Use. Call us at +1 404-800-5568 and our receptionist will gladly book a complimentary Discovery Call for you over the phone!

Copyright Infringement

The thing is, not everyone is going to be a team player and honor your copyrighted work, that’s when copyright infringement occurs. In short, copyright infringement is when someone uses, reproduces, or distributes your copyrighted work without permission.

For example, another person might use your work without your consent, and get away with it unless you apply for copyright registration of your work and take advantage of the remedies available to copyright owners: a copyright takedown request (if violation of your copyright occurs online), federal court, or administrative small claims proceedings at the Copyright Office.

In the event the infringing party believes there is a permissible basis for not asking your consent to use your work, then that party might make the argument of Fair Use. Having competent copyright counsel represent your claim will help ensure that you address the Fair Use defense and assert your rights.

To get a better sense of how copyright registration affects you and your business, it’s recommended to consult a lawyer like Attorney Morin to register your work and address prospective rights violations. Call +1 404-800-5568 and our receptionist will gladly book a complimentary Discovery Call for you over the phone!

So if you find yourself in this situation, it’s crucial that you take swift steps to protect your rights and seek legal action right away.

But as to what those steps entail, continue reading to empower yourself and guard your creative content.

5 Ways To Protect Your Intellectual Property

1. Register a Copyright

Registering for a copyright with the appropriate copyright office is your first step to defending your business and creative content. So you can establish a public record of prima facie  (i.e., meaning from the first impression) ownership, which strengthens your legal position in case of any disputes, and, registration further grants you additional rights and statutory remedies.

Below are resources to support you:

• How To Register a Copyright
• Register Your Copyright

2. Clarify Your Ownership

Having written proof of your ownership minimizes your risk of potential conflicts and ensures that your rights remain secure. Not only that but always review and revise to keep up-to-date, so your back and business are protected at all times.

Proof and documents include:

• Use of the copyright symbol (©)
• Contracts, licenses, and other legal agreements

3. Be Accessible to Contact

Make it easy for people to reach out and ask permission to use your work because it is recorded in the public record at the Library of Congress (which agency keeps all the deposit copies of registered copyrights). By fostering open communication, you decrease the chances of others infringing on your work without consent.

4. Keep Track & Monitor Your Original Works Online

Don’t let anything fall through the cracks and make sure others are in compliance by keeping a record of your original works.

The thing is, not everyone will ask for permission to use your creative content and when that happens, you can take swift action and send a copyright take down notice.

Also known as a cease and desist (C&D) letter/notice, this serves as a formal request for the offender to stop using your copyrighted materials. The C&D must be drafted by an attorney because it may form the basis of future litigation or other small claims proceedings.

However, not everyone will comply and in that case, you’ll want to take further legal action when the offender doesn’t desist.

“A copyright owner can sue in civil court, seeking an injunction to prohibit the defendant’s further unauthorized use of copyrighted materials, as well as to recover damages.”

Not everyone can afford federal court, so the U.S. Copyright Office created the Copyright Claims Board (CCB) to provide monetary relief to those with more modest means. We highly recommend consulting with a copyright lawyer like Attorney Morin to determine whether you might take advantage of the CCB.

5. Speak With An Expert Copyright Attorney

When in doubt, always consult with an expert attorney that understands the United States Copyright Law to the fullest extent.

An experienced copyright attorney can provide invaluable guidance, ensuring that you remain in compliance and fully protected by the law. And they can advise you on other forms of protection, such as trademarks (™), if necessary.

By implementing these strategies and seeking professional guidance when needed, you can fortify your creative journey and ensure your intellectual property protection from potential violators.

Which gives you the peace and mind of thriving in your creative passion and vision with the law on your side. So take this blog as a reminder to take action now, whether on your own or with the expertise of Attorney Morin, to make sure you’re in compliance with the law & fully protected.

Attorney Morin is a copyright expert, speaks, and writes frequently on aspects of United States copyright law. Now are you ready to protect your intellectual property? Call 404-800-5568 and our receptionist will gladly book a complimentary Discovery Call for you.

Selling the American dream of freedom and independence to small business owners since 2013. ™

Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Consult with Attorney Morin for personalized legal guidance regarding your specific case-by-case situation.

The post How to Protect Your Creative Content with Copyright Law appeared first on Morin Legal.

It is worth noting that books, whether printed or digitally published, contain text which is protected under copyright. If those books also contain illustrations, those drawings are also protected. 

So ‘why choose books over movies?’ is a good question, since copyright protects lots of subject matters, not only “books.”

I have a theory.

Copyright law in the United States (as a former colony) is borrowed somewhat from British law and so, in England, copyright arose under the reign of King Henry VIII. King Henry needed money for his wars, because hunting trips are expensive, and so are castles, and women. So he started a compulsory tax, the first mandatory copyright license, to fund his wars. 

He was able to do this successfully, because of the invention of the printing press, a disruptive tech back then, which allowed music, and all types of “books,” including songbooks, to be printed for the masses on machines. Makers of these machines, therefore, needed content (sound familiar)? 

So King Henry saw a win-win and forced a license on content owners in his jurisdiction for the benefit of the publishers and for the crown, which was him. Hence, because “books,” were at the epicenter of the renaissance of copyright, it seems fitting that World Copyright Day is celebrated conjoined with World Book Day.

 4 Major Types of Intellectual Property (IP) & Why They Matter

Patents 

They give us technology that improves the quality of life

Trademarks 

Give us consumer security

Trade secrets

They give someone that competitive edge

Copyrights

Enable emotional support. 

In my opinion, it is safer to explore irrational and uncontrollable matter like a feeling in a work of art, literature, film, and dance in hopes of processing and understanding the nature of humans better. Such universal stories whether they arise in film or song, knit the world together one audience at a time. 

One film that did a great job of bringing people together is CODA, which won numerous awards since it premiered in 2021 at Sundance. Starting its journey ten years ago as the French film, La Famille Bélier, CODA (acronym for Child of Deaf Adults) tells the story of a teen trying to launch her singing career as the only hearing member of a deaf family. It is now being made into a musical, with the producers working with Tony Award-winning Deaf West Theatre in Los Angeles. 

As for patents, it is rare we get those in entertainment, but when we do, it is exciting! The human race has been in the “Digital Era” since 1976 – the invention that put us there? The “Digital Audio Tape” is also known as the DAT tape. Since 1976, we have had many notable inventions change the landscape of entertainment as we know it. The biggest invention in in my opinion is the Internet – without it, we would not have streaming. 

Streaming is where all entertainment coalesces now. Unless you are one of those die-hard cinema lovers and must-see movies in a theater, which, I agree. My favorite format is IMAX because of the total immersion. And I am not alone in feeling this way! Indeed, IMAX announced in March it is developing its next generation of cameras, with plans to release the first in late 2023. 

Motion picture cameras are examined at the United States Patent & Trademark Office in a class by their own (352), apart from cameras used for still photography. IMAX will enlist input from directors Christopher Nolan (Tenet) and Jordan Peele (Lovecraft Country) and cinematographers, who account for most of the large-scale movies shot on film and some shot digitally in recent years. 

And if you want to use one of these amazing films at work to make a presentation more fun and engaging, then visit the Copyright Clearance Center to apply for a Motion Picture License to legally use movies at work.

The post Copyright: An Origin Story In a Digital Era appeared first on Morin Legal.

According to Merriam Webster, consent entered the English vocabulary in the 13th century from Latin and French. Consent means, “to give assent or approval; to agree to do or allow to do something; to give permission for something to happen or be done.” It has an abundance of synonyms; words such as agree, allow, approval, clearance, grant, license, permission, and permit all surface in the following discussion and are particularly found in the practice of law. Other words such as release may not be a synonym, but nonetheless its use evokes consent.

This article is split into five main sections by how a producer may encounter consent issues in filmmaking. Beginning with development, I discuss the story, from determining authorship to rights acquisition. Section two discusses the script and reviews clearance and title selection. The players bring up the mid section, which highlights consent in employment agreements. Section four discusses the production, from permits, to filming on location, use of animals, and releases. Saving the best for last, I discuss music in film, from commissioning new works, to working with artists, composers, publishers, record labels, and finally, music supervisors.

In each section, I will cite to case law that has surfaced since film entered the entertainment landscape. Courts interpret the law where the law is sometimes silent. My aim is to relate concepts so non-lawyers find the information useful as well as entertaining. I may also cite to statutes in an effort to educate, but will keep these footnotes in the minority where possible.

This article will publish in five separate sections over the next four weeks. If you enjoy this article, please sign up for my quarterly newsletter or follow me on social media where I will post updates with links to insertions. I will also share firm news, events, and pictures.

The Story

A story forms the foundation of a film. Stories take many forms; they can be written or spoken; they may have one or more authors; they may publish independently or as part of a collection. To develop a story, a producer must first determine the identity of its author, or authorship.

Authorship

A copyright attaches to an original work of authorship fixed in a tangible medium of expression[1]. There are eight (8) works of authorship listed under the U.S. copyright code, which include dramatic works[2], which are works intended for performance, such as plays and scripts. If a single writer completes the first draft of a script, he or she is the author and owner of that script. If another writer revises or polishes the first or subsequent drafts, then its result is a derivative work of that script. A derivative work is based upon one or more preexisting works and consists of editorial revisions, annotations, elaborations, or other modifications, which result in a complete work[3].

If two or more writers each intend to contribute parts, which then merge into an inseparable, interdependent whole, then each writer is a joint author[4] and owner[5] of that story. If each writer intends to contribute a separate, independent story, which when assembled with other stories becomes a collective work[6], then each writer is the author and owner to his or her story; however, there is an ownership interest in the collection[7]. Sin City, Love Actually, and Crash each contain vignettes that stand alone, but when combined tell even greater stories about other worlds or characters.

Screenwriters may capture stories in different phases of development. A screenwriter may pitch a story verbally to a producer, summarize the characters or plot in a written treatment, or develop a more complete script “on speculation.” Spec scripts, treatments, and pitches are preexisting works, in which screenwriters may register a federal copyright.

Federal copyright registration creates a presumption of ownership if the work is registered within five (5) years from the first date of publication[8]. Publication is the distribution of copies of a work to the public by sale or other transfer of ownership, or to a group of persons for purposes of further distribution, public performance, or public display[9]. One cannot sell or transfer what one does not own; therefore, registration of a work under the copyright law of the United States provides its applicant with ownership.

The owner of a federal copyright immediately benefits from six (6) exclusive rights[10]. Rights include the right to reproduce, prepare derivative works, distribute, perform work publicly, display work publicly, and perform sound recordings publicly by digital audio transmission. These rights derive their value in their exclusivity to the copyright owner, who has the right to exclude others from their use without permission. To access any or all of these rights, the producer must either have permission from the copyright owner or transfer ownership in the copyright to the work.

The right to exclude others lasts the duration of a copyright. Copyright duration begins from the date a work is created and lasts for the life of the author plus 70 years[11]. In the case of joint authors, copyright protection lasts for the life of the last surviving author plus 70 years[12]. If made under a work for hire or pseudonymous work, copyright protection lasts 95 years from first publication, or 120 years from creation, whichever expires first. If the identity of the author is revealed in a work registered pseudonymously, the period will convert to life plus 70 years[13].

Rights Acquisition

Producers generally prefer to acquire ownership in all audiovisual and allied rights to a preexisting work. Ownership is acquired through a transactional document, which is signed by the copyright owner and producer[14]. The writer remains the author in the preexisting work, but the producer now owns the motion picture and neighboring rights to develop it.

Preexisting works include include pitches, treatments, and spec scripts, as well as literary works not written for the screen such as novels. While most screenwriters seek relationships with producers, most novelists do not. Authors in literary works will more often have a relationship with a publisher. Publishers typically possess the authority to bargain motion picture rights on behalf of the author whom they represent by way of a publishing deal.

Authors or publishers will commonly reserve rights to all print, audio, and electronic text publication of the story, radio rights, stage rights, sound recorded rights in the case of audio books, and all rights, including those granted to the producer, in any sequels. Reserved rights enable the author or publisher to exploit the story in its original medium while accessing new audiences in motion pictures and other audiovisual mediums of expression.

The producer may hire additional writers to develop the script. These writers will generally agree to a work for hire agreement[15], which is a written document signed by both writer and producer that cedes ownership and authorship in the work to the producer[16], who specially orders or commissions the work as part of a motion picture. There is an exception for Writer’s Guild Association members, whose Minimum Basic Agreement provides “separated rights” that allow them under certain circumstances to regain or exercise certain rights akin to copyrights.

Rights Termination

Unlike a work made for hire, a transfer of rights can be terminated[17]. Termination need not be effected by the author, the author’s heirs may effect termination upon the author’s decease. Thus, there is a risk that at some point in the future transferred rights will terminate and revert to the author or author’s heirs. Copyright law provides producers, who lose their rights, with the right to reproduce, perform, or distribute a work created while under the authority of a transfer, but it will prohibit any new works, such as remakes or sequels[18].

Public Domain

Stories in the public domain are free to use. A story enters the public domain if its copyright expires, though for older stories other conditions exist which may thrust it into the public domain. An example of a story in the public domain because its copyright expired is most of Sir Arthur Conan Doyle’s Sherlock Holmes[19]. What is public domain in the United States may be copyrighted in a non-U.S. country. If a film requires the rights to distribute worldwide, then confirmation the story, which it is based upon, is public domain worldwide is essential.

True Stories

A copyright is an original work of authorship fixed in a tangible medium of expression. Expression is protected, not the idea or concept on which it is based. If I want to tell a true story, I am free to do so as long as my source material is not protected. Primary sources such as public records, court transcripts, witness testimonies, or trial documents are objective facts. Secondary sources such as books, autobiographies, or articles, are subjective interpretations of facts, and are therefore expressions, which may be copyrighted and if so, require consent.

Pitfalls exist when developing a true story that an entertainment attorney and insurance carrier will help the producer to identify. If a story is based in secondary sources, there is rights acquisition. If a story embellishes facts, there is possible defamation. If real names are used or private, embarrassing facts revealed, there is a chance of a privacy claim. If names are used commercially without permission, then a publicity claim might arise. To obtain errors and omissions insurance coverage, the producer must reduce or remove risk entirely.

Everything in Writing

Everything agreed to must be in writing to provide insurance carriers with clear chain of title. Clear chain of title requires documents that trace ownership in the story to the producer. In the case of a preexisting work, an assignment will record the transfer of motion picture rights from its author(s) to the producer. Assignments are accompanied by purchase agreements, or options. Option agreements document the interest in the preexisting work. If a preexisting work involves a publisher, then a release provides evidence the publisher releases all claims to the motion picture rights and consents that the producer reprint portions of text in print publication for advertising, publicizing, or exploiting the film.

In contrast, true stories that are based in primary sources require no assignment. The risk in true stories is working with people’s identities. Thus, a life rights agreement will insure the producer has permission to tell a true story without concern of a claim of defamation, or a violation of privacy or publicity rights arising from the film. If the true story pulls from secondary sources, then the producer may use both a life rights agreement and an option agreement with an assignment for any portion of the story based in copyrighted work.

Cautionary Tales

Authors may grant general but not specific rights. Warner Brothers Pictures learned a hard lesson when a character in their film, Maltese Falcon, subsequently appeared on television because the author licensed character rights in Sam Spade to CBS. The court found the film studio acquired rights to the general story, but not its characters; thus, the author was free to license those rights to third parties. Thus, rights not expressly granted in an agreement are not granted, but rather are reserved to the grantor, or author of the story[20].

Authors may bargain for reversion rights that specify conditions, which if met, terminate rights. In one case an author and film studio agreed to a completion deadline or the studio’s rights would revert to the author. The court found for RKO Teleradio Pictures, who only made minor changes after the deadline; thus, the author lost the case. This case established that a motion picture is complete when all photography and editing are done, musical score affixed, certificate of approval obtained, and the picture may be publicly exhibited[21].

Now that you have your story, it is time to clear the script! Script clearance includes personal rights and intellectual property rights. It is also time to select a title. Title selection is governed by trademarks, unfair competition, and through contract agreements by film professionals.

The post Got Consent? Legal Issues in Film, Pt. 1: The Story appeared first on Morin Legal.

Copyright for the Freelance Artist, Pt. 4, a case study of MomoCon

by Lee Morin, Esq.

In Copyright for the Freelance Artist Pts. 2 and 3, we discussed copyright for freelance artists in the context of employment; however, we will now return to where we started with a discussion on the role that fans play in the world of animation.  Frequently, fans of animation, or manga, grow up to pursue careers as freelance artists.  My cousin graduates from SCAD this year with a degree in visual effects. When she was a kid, she collected manga and learned Japanese.  She is an example of a fan, who became a career participant. I would like to dedicate this final chapter to my cousin.

Introduction

The first time I met Christopher Stuckey, Co-Chair of MomoCon, was at Mashable’s Social Media Day in 2013. Nestled in West Midtown, we networked and learned about social media from Dorothea Volpe. I again ran into Chris at GameVidExpo, where I was a featured panelist on fair use for YouTubers, and SIEGEcon, where I presented on intellectual property law basics for game designers. I suppose it was only a matter of time before I turned my sights to MomoCon. My hope is that the information shared here will raise awareness of the risks presented by fan art, how to guard against risks, and comply with the law at a convention that is well known for its costume role play (“cosplay”), anime music videos, Artist Alley, and Dealers Room.

Background

MomoCon happens in late May every year in Atlanta, and thousands of fans of Japanese anime, American animation, comics, video games, and tabletop games flock together in celebration of their fandom. It is an all ages event, which sets the stage for adults and children alike to explore their enthusiasm for characters, fantastic worlds, and stories together. To encourage this sharing, and notch it up with some healthy competition, MomoCon presents the Craftsmanship Costume Contest, which judges hand-crafted costumes and props, and the Video Remix and Anime Music Video Contests, which judge audiovisual mashups of a variety of animations set to music.

Cosplay

The Craftsmanship Costume Contest at MomoCon features cosplay, a portmanteau of costume and role play, in which participants wear costumes and accessories to represent a character or an idea. Cosplayers draw their inspiration from manga and anime, comics and cartoons, video games, and films. In other words, few take their inspirations from solely textual descriptions, and instead depend upon graphic fixations of characters eligible for copyright.

Characters

MomoCon features animation, gaming, and comics. Under copyright law, animation falls under motion pictures[1], interactive entertainment (i.e., video games) as other audiovisual works[2], and comics as literary works[3] containing graphic works[4]. Thus, characters in graphic novels, like Watchmen, or comics, like X-Men are graphic works[5].” Characters in motion pictures[6] are more likely protected if their stories are character-driven[7]. An example of a character-driven story is James Bond. Sherlock Holmes, which is character-driven, lost protection of 50 works published prior to 1923 when a United States appeals court issued its judgment and the Supreme Court denied certiorari[8], which settled the issue. Characters in interactive entertainment, like Resident Evil, are also protected as graphic works[9], which are part of other audiovisual works[10].

Costumes

Thus, characters are protected, but are costumes? It depends. Costume makers are not necessarily in the business of fashion design, which is an applied art[11] protected under copyright law[12] with certain limitations on useful articles[13]. Useful articles such as clothing and accessories serve a function and are therefore not protected under copyright. In contrast, designs appearing upon clothing or accessories such as those created by an artist are protected designs, which can be identified separately from, and are capable of existing independently of, functional aspects of the article[14]. Thus, if a costume has an artistic design that by itself carries meaning, then that design may be protected.

Copyright owners may agree to license to costume manufacturers the exclusive right to prepare a derivative work of a character depicted in their copyrighted works (motion picture or artwork). Depending on how the license agreement is worded, either the copyright owner will be required or the licensee costume manufacturer will have the authority to enforce the copyright in the event infringement is discovered. Licensees pay dearly for exclusive rights and thus the value of that license is diminished if an unauthorized party makes and sells costumes of the same character in their market. Moreover, because there is no license agreement between parties, the licensor copyright owner has no control over the quality and delivery of the costumes being made and sold by the infringing party.

The Stormtrooper

Sometimes, infringement occurs between parties who have done business together and know each other well. In one case, the costume designer himself was the infringing party, albeit thirty years after its creation. In the famous case of Lucasfilm v. Ainsworth, Ainsworth was the English costume designer on a work for hire basis for a motion picture called Star Wars. This means that whatever he created, his employer, Lucasfilm, owned, by virtue of their employment agreement. Thus, Ainsworth never owned any rights in the artwork or motion picture, which incorporated his design for the stormtrooper[15].

Never the less, Ainsworth and others made and sold stormtrooper costumes without permission. In turn, Lucasfilm sued them in federal court and won a judgment for 20 million dollars[16]. Because the opinion was not reported, it is difficult to speculate on the court’s reasoning, which led them to accept the argument that the stormtrooper helmet should be protected as a sculpture under copyright law. Ironically, Lucasfilm could not enforce their judgment in English courts because of conflicts between the American and English courts’ interpretations of sculptures[17]. Perhaps Lucasfilm could have taken a different approach to enforce their copyright, one, that would have held up in English courts.

Original Designs

Thus, if you base your cosplay upon a pre-existing work, it is technically copyright infringement; however, original designs are not. Original designs based upon literary characters for which there are no illustrations, but merely textual descriptions, are less likely to be viewed as infringement because to create them requires some work of the imagination on the part of the cosplayer[18]. Furthermore, original designs based on ideas (“the evil witch,” “the sea serpent,” “the Greek/Roman goddess,”), are eligible for copyright protection as graphic works if captured first upon paper[19], which is a tangible medium, because they are expressions of those ideas.

The Rules for the Craftsmanship Costume Contest suggest that a visual reference be turned in with the application to compete in order that the contestant be eligible for accuracy points. Thus, if you want to be eligible for accuracy points, it is wise to capture your original design first upon paper, and preferably in color. You may not be eligible for accuracy points if judges are not familiar with your character. It is unclear whether “familiar with” means that the judges simply require a visual reference such as a colorful sketch of your costume, or, if it means that judges rather expect that contestants will represent characters depicted in copyrighted works.

To Litigate, or Not?

Never the less, if you base your cosplay upon a pre-existing work, it is unlikely that copyright owners will sue for infringement because actual or statutory damages and lost profits will be less than the cost of litigation. Moreover, those cosplayers, who use their homemade costumes for personal enjoyment only and not for profit, or who sell commissioned works and refrain from mass-production, might raise an affirmative fair use defense[20]. Finally, the public relations backlash for suing your fan base, which includes children, is likely to be substantial.

Copyright v. Trademark

A copyright need not be enforced each time it is infringed. This distinguishes copyright from trademark, which must be enforced in every instance where infringement occurs to prevent arguments of abandonment. The validity of a trademark arises in actual use in commerce, whereas the validity of a copyright arises because it is an original work of authorship fixed in a tangible medium of expression. Copyright owners thus have a choice whether or not to sue.

Be wary should your commissioned works of cosplay carry a registered trademark. Registered trademarks must be enforced if they are to be maintained; thus, owners will pay for a “watch service,” which mines data over the Internet and otherwise to uncover unauthorized uses of their trademarks. If noticed, you will likely receive a cease and desist letter requiring you to remove the infringing article from your storefront and cease all further use of the trademark.

Etsy and Ebay

If you sell your commissioned works over vendor platforms like Etsy and Ebay, then you also risk being labeled as a repeat offender if you are served with enough take down notices. Etsy and Ebay will take down instances of alleged infringement, which are reported by copyright owners, because they are shielding themselves from secondary liability[21]. Etsy and Ebay each have their own systems for reporting and addressing instances of alleged infringement. It is less risky to ply your wares by word of mouth than online. But if you must sling cosplay online, then it is important that you become familiar with these policies to successfully operate within them.

Anime Music Videos (AMV)

Background

MomoCon’s Video Remix (V-Mix) and Anime Music Video (AMV) contests feature audiovisual mashups of a variety of animations set to music. Th Rules and Guidelines for the AMV contest require that submissions consist of at least 50% Japanese animation, anime-style video game cut scenes, or anime-inspired stills. The V-Mix competition welcomes submissions that use non-Japanese animation, original animation, machinima, video game, cosplay, and live action footage.

Visual Aspects

Some of these materials are likely to be protected under copyright, whether in the United States or Japan, while others are more likely to stem from original works. For example, Japanese and non-Japanese animation, anime-style video game cut scenes, video game, and live action footage will all likely be directly copied from the original work. Anime-inspired stills, machinima, and cosplay footage, if based upon pre-existing works, qualify as derivative works. Anime-inspired stills and cosplay footage, if from original designs, and original animation, are the only types of footage that could be entirely original works and deserving of their own copyright protection.

Circumvention

The Digital Millennium Copyright Act enabled legislation, which former President Bill Clinton signed into law in 1998, that addresses the circumvention of copyright protected works[22]. The law states, “No person shall circumvent a technological measure that effectively controls access to a work protected under [copyright][23].” It further prohibits others from trafficking products, which serve a primary function to enable others to violate the law[24] either by granting them access to[25], or enabling the infringement of[26], any of the exclusive rights[27] granted in copyright.

Obtaining the footage required to compete in the AMV and V-Mix contests thus presents an additional layer of concern over circumvention of copyright protection systems, which are used to violate any of the exclusive rights in copyright. Contestants may use products that carry circumvention applications to rip images and video with copyright protection systems, thus infringing upon the exclusive right to reproduce a copyrighted work in copies[28] if source material is copied directly into a video, and the exclusive right to prepare derivative works based upon the copyrighted works[29] if source material is further used to construct anime-inspired stills or machinima.

To Sue, or Not?

The likelihood that any AMV or V-Mix contestant will be sued for copyright infringement is small, and for the same reasons given that cosplay contestants will likely not be sued either. First, the cost of litigation far outweighs the potential award for damages; second, the use is arguably for personal enjoyment; and third, the fan will likely not reproduce, sell, distribute, or publicly perform their entry in another venue than for the contests at MomoCon. The Rules and Guidelines prohibit entries that were submitted to any prior exhibition or contest; thus, the performance is most likely to be for this single event and not for any further competitions.

YouTubers

If the video is later posted to YouTube however, it is quite possible that the Content ID system will automatically flag any infringing material, whether audio or visual, and either remove the audio while leaving the video untouched, or remove the entire content. If that happens, and the person posting the video believes it is a fair use[30], then he or she may appeal the take down[31]; but an appeal if decided against the person posting the video will result in a flag. After three flags, or strikes, the channel is removed along with other permitted content and loses its subscribers.

Machinima

It must be noted that the history of machinima plays a larger and vital role in the development of relationships between fans and copyright owners. In 2007, two major players in the world of interactive entertainment, Microsoft and Blizzard, each developed unilateral licenses for their games, Halo and World of Warcraft. Each license varies slightly, but both grant to their fans a limited right to prepare derivative works. Such maneuvers reduce potential litigation, and serve as mechanisms by which Microsoft and Blizzard acquire good public relations with their fans.

Audio Aspects

The AMV and V-Mix contests are audiovisual in their nature. So far we have covered visual, but what about audio aspects?  The Rules and Guidelines specify for entries into the V-Mix contest, “video must only use a single audio track or a congruent audio mix.” If the contestant creates his or her own content consisting of a single audio track or mix, then there is no copyright infringement. If the contestant instead uses audio content consisting of copyrighted works without permission, then he or she is infringing copyright. The rights infringed upon include the right to copy the work[32], to prepare derivative works[33] (as part of a video), and, to publicly perform the work[34].

Can I Get a License?

The world of music licensing is convoluted and frustrating, even for professionals, who navigate it daily. For the average contestant, the licensing scheme is pointless because licensing fees are generally based on gross estimated revenue for the requested use. For example, if I were to license a song for a dramatic production, then the copyright owner would command a percentage of my gross ticket sales in exchange for permitting my use of their work in my play. Because the contestant is not profiting from their requested use, there is nothing upon which to base the licensing fee.

The Layer Cake

Allow me to parse for you the many layers of rights involved in licensing music for use in video. First, there are mechanical rights, which arise in the writing and composing of the title. Second, there are publishing rights, which arise in the placement of the title in various artistic mediums, such as film, television, podcasts, advertisements, and other audiovisual works. Third, there are master use rights, which arise in the sound recording itself. Publishers, which may be located by searching ACE, BMI, or SongFile, administer the first and second layers of rights. Record labels usually administer the third layer of rights. To synch music with video requires all three layers of rights; thus, you will spend an inordinate amount of time locating and negotiating a license.

No Means No

Even if you successfully perform the footwork to locate and begin negotiations with publishers, you will find that many artists will not permit use of their works in certain mediums to protect their reputations. Indeed, Van Halen consistently rejects use of their works in theater. Thus, it is unlikely that a contestant would have the skills or resources, much less be able to offer rights holders any benchmark upon which to base a licensing fee to use copyrighted works. In the end, it may be best to limit your use of the music and video to the AMV or V-Mix contest only.

Pre-Cleared Content

Contestants may avoid infringement by using pre-cleared content including images, video, and audio works in their AMV or V-Mix entries. Creative Commons serves as an online gateway for pre-cleared content by providing users with access to communities, which provide platforms that allow copyright owners to upload content under a variety of Creative Commons licenses. Thus, contestants can search for content and specify whether their use is for commercial purposes, or to modify, adapt, or build upon a pre-existing work. The website is available in several languages, so contestants from all around the world can access it. Once you locate the content you desire to use, it is wise to contact the owner to confirm it is indeed under a Creative Commons license.

Public Performance

Conventions do not qualify for an exemption[35] and therefore must obtain permission to perform copyrighted works publicly[36]. A performance is public[37] when it occurs at a place open to the public, such as a performance by musicians, or, when transmitted to the public by means of any device or process, such as playback of an audio track or mix containing a sound recording on a public address (P.A.) system. Thus, to perform a copyrighted work publicly, the convention must first obtain performance rights from the copyright owner or his or her representative.

The Blanket License

Performance rights organizations (PROs) like ASCAP, BMI, and SESAC represent songwriters and publishers. They administer public performance licenses. The blanket license is specially crafted for public events like MomoCon because it permits an unlimited use of literally millions of titles without requiring the paperwork, hassle, and expense of finding and negotiating licenses with each individual copyright owner. Thus, it provides its user with reliable protection against infringement[38] while ensuring that copyright owners of music titles are paid their royalties.

Doujinshi, Fan Art, and Fan Subs

Background

MomoCon provides venues for artists and vendors to display and sell their creative works and wares to the public. Artist Alley is where artists display and sell arts and crafts. The Dealers Room is where vendors display and market their merchandise to fans of anime, comics, gaming, and costumes. Both venues attract thousands of visitors over the weekend in the City of Atlanta.

Doujinshi/ Fan Art

Doujinshi is the transliterated word from Japanese for self-published works that manifest as fan zines, manga, or novels. Fan Art is artwork that is based upon or inspired by a pre-existing work typically found in visual media such as comics, motion pictures, or interactive entertainment, and is neither created or commissioned nor endorsed by the copyright owner in the original work. It manifests as visual art, such as paintings, drawings, prints, animations, avatars, or photographs.

Infringed Rights

Doujinshi and fan art by their very nature infringe upon the exclusive right to prepare derivative works[39] in copyrighted works. If either is displayed or sold to the public, whether at a convention or online, then there is further infringement upon the exclusive right to distribute[40] and to publicly display[41] the copyrighted work. Doujinshi do not infringe upon any rights if the author prepares original works; some authors are professionals seeking to publish outside of their industries.

Cultural Treatment

Although technically illegal, doujinshi and fan art are mostly tolerated because they provide creative outlets for fans to explore and participate in fandom. This exercise is not only healthy for aspiring young talent, but it is also a wise public relations move on the part of copyright owners, who seek new audiences for their works. Though doujinshi is adverse to Japanese copyright law, twice each year Tokyo hosts Comiket, the world’s largest comic convention, where more than half a million fans gather together to exchange or sell their doujinshi.

Fair Use Defense

It is unlikely that a copyright owner will sue a fan participating in doujinshi or fan art simply because the cost of litigation outweighs the potential award of damages. Fans create infringing works for one day or weekend events and do not distribute or display them in the commercial markets. Moreover, it is arguable that such works are transformative, and are therefore a fair use of reproduction because they create new meaning in their works.

Original Aspects

It is important to note that although the underlying work in doujinshi/ fan art does not belong to the author/ artist, new or original aspects do belong to the creator and are thus copyrightable[42]. If you were to license the right to create a derivative work, then any new aspects that you develop in creating the derivative work would belong to you. This is why translations are copyrightable, because new expressions in other languages belong to the translator and are a derivative work[43].

How to Copyright Fan Works

United States copyright law does not protect original aspects of derivative works, which do not obtain permission to use the underlying work lawfully. To be copyrightable, a derivative work must not be infringing[44]. Thus, an author/ artist cannot enforce rights in the original aspects of their works unless they obtain a license from the copyright owner in the underlying works. This adds a layer of frustration in cases where the fan art is the target of impermissible exploitation.

Infringement by Fans, for Fans

I heard of one such situation, where an author of fan fiction found that another author of fan fiction had copied entire chapters of her book into her own publications and was selling them online. The author did not own the underlying work in her fan fiction; thus, she did not have the means to exclude this blatant word for word copying and profiting off of her work. She instead turned to the Organization for Transformative Works, who helped her achieve the desired result using other means such as direct correspondence with the offending plagiarist.

Your Best Resource

The Organization for Transformative Works (OTV) is the world’s largest advocate for derivative works, including fan fiction, anime music videos, and real person fiction. Its primary focus is to protect fan fiction, fan art, videos, and other transformative works from lawsuits and commercial exploitation. It offers an open-source, non-commercial, and non-profit archive of fan fiction, a wiki for preserving oral history, legal assistance to fan communities, historical preservation, a peer-reviewed academic journal entitled, Transformative Works and Cultures, and tutorials.

Artist Alley Packet

The Artist Alley Packet addresses copyright infringement by artists in its Policies. It states, “Artists are left to their own discretion regarding the copyright of their characters. If contacted by a copyright holder or representative, MomoCon will fully comply with all requests.” The effectiveness of this policy is unknown until it is tested. The chance that MomoCon will be held liable for secondary infringement is akin to the likelihood that any of its participants in Artist Alley will be held directly liable for copyright infringement. The chances are slim to none.

On the last page is an “Original Agreement,” which though not a traditional contract serves as a pseudo-contract, which requires dates and signatures by both artist and MomoCon authorized representatives. The artist promises, “I agree to refrain from selling non-legitimate materials.” This promise serves as a warranty to MomoCon; however it is missing one key provision.

Indemnity Clause

Indemnity provides an extra layer of protection against any liability arising from any acts or omissions by the artist. In the case an artist sells “non-legitimate materials,” then the indemnity clause will trigger to shield MomoCon from liability arising from the broken promise.

Fansubs

Fansubs are a form of fan art, but they are less transformative than doujinshi or fan art. A fan sub is a redubbed version of animation from one language into another. The aim of this fan art is to make certain works accessible to fans from other countries and that speak different languages. Thus, the exclusive rights infringed upon to make and distribute a fansub include the right to reproduce a copyrighted work[45], the right to prepare derivative works[46], the right to distribute[47], and the right to display a copyrighted work publicly[48] if the fansub is displayed for sale or trade.

National Treatment

There is no international copyright law, but there is national treatment. The Berne Convention is an international treaty, which provides its signatories with similar protections afforded copyright in all nations. Nations can make laws that require more strict copyright regulations, but they cannot make laws that fall below the basic principles agreed to under the Berne Convention. The United States and Japan are both signatories to the Berne Convention and its amendments. Thus, a work protected in Japan is afforded “national treatment,” by the laws of the United States.

The Berne Convention grants the exclusive right to translate expressly to the copyright owner. The United States grants the right to translate to the copyright owner under the exclusive right to prepare derivative works of copyrighted works[49]. Thus, any fan sub that creates an unauthorized translation is infringing not only United States copyright law, but also copyright law of Japan.

The Berne Convention further expressly grants the exclusive right to reproduce copyrighted works in copies to the copyright owner, but makes a provision for fair use. The United States also grants the exclusive right to reproduce copyrighted works in copies to the owner, but also has a limitation entitled fair use[50]. In my opinion, fansubs will not benefit from the fair use limitation on the justification that there is no market for the products they purport to supply. The privilege to enter the market sits with the copyright owner; thus, fansubs are infringement.

Third Party Infringement

Fansubs create additional layers of infringement beyond what has already been discussed. Fan subs may contain content from third parties, such as companies who fund animations. If sponsorship agreements fund animations, then they may contain company logos and product placements that are protected under trademark law. Moreover, music synched with animations is a separately licensed right as previously noted; these licenses are narrowly tailored and non-transferable.

Dealers Room

It therefore comes as no surprise, that fansubs are expressly prohibited not only in the Artist Alley Packet, but also in the Vendor Contract at MomoCon. MomoCon does a much better job with identifying their rights to eject any vendor selling infringing material without warning and without refund; and, to inspect or eject “questionable” material at any time. MomoCon also identifies vendor’s obligations to obey all relevant laws regarding the sale of infringing material and to have documentation on-hand of proper licenses to sell materials that require permission.

Indemnity Clause

While I appreciate the effort that MomoCon makes in tightening up this provision on intellectual property, it would be even tighter if it carried its own indemnity clause. Simply stating that you are not responsible does not mean that the vendor expressly agrees to be liable for any claims.

Paragraph 22 is a general indemnity clause and does not cover any claims arising from any acts or omissions on the part of the vendor, but rather on the part of MomoCon. Thus, it is important that Paragraph 12 contain its own indemnity clause, such that vendor agrees to hold MomoCon harmless from any acts or omissions arising from any breach of promises by the vendor.

DISCLAIMER: THE INFORMATION CONTAINED IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT LEGAL ADVICE.

The post Copyright for the Freelance Artist Pt. 4: A Case Study of MomoCon appeared first on Morin Legal.

Copyright for the Freelance Artist, Pt. 3,

by Lee Morin, Esq.

In our last blog, Copyright for the Freelance Artist, Pt. 2, we discussed three types of agreements employers and artists might use when collaborating: work for hire, assignment, and license. In Copyright for the Freelance Artist, Pt. 1, we defined copyright, stated what subject matter it protects, the exclusive rights it grants, and outlined the benefits of registration, for example, access to federal courts and statutory damages in enforcement proceedings.

Moral Rights/ Les Droits Morale

As a freelance artist, you may decide that registering federal copyright in your creative works provides you with the means to protect them. Moral rights, which exist in Europe, provide artists with the means to further protect their works, which rights are inalienable, meaning they cannot be contracted away, and include the right to create, to determine completeness, to withdraw, to attribution, and to integrity. The United States recognizes a limited set of moral rights for visual artists[1]; thus, an artist, who paints, draws, prints, sculpts, and photographs images for exhibition only, in single copies or limited editions of 200 or less, signed and consecutively numbered, may assert their moral rights to attribution and integrity.

Copyright Registration for Artists

For all other artists, copyright registration is the sole method by which you may protect your creative works from impermissible exploitation, by enabling the copyright owner to exclude others from use. The use of your work comprises the exclusive rights granted in copyright[2], including the right to reproduce, to make derivative works, to distribute, to publicly perform, and to publicly display the work. Thus, if I am an artist, I may create characters embodied as graphic works[3], that I license to a publisher for distribution as a comic book[4], or to a filmmaker or game designer for adaptation into a motion picture or interactive game[5], or, on an exclusive basis in North America to a fashion designer to create Halloween costumes that are based on my characters[6].

Copyright Registration for Employers

Freelance artists are not the only parties seeking to protect creative works. Employers, who hire freelance artists, either as an employee, or as a contractor, also take precautionary measures. If you agree to a work for hire[7], the employer is the author of your works and thus has the right to register copyright. If you agree to a combination of work for hire and assignment[8], then whatever cannot be claimed as a work for hire is assigned in your contract. If you simply assign your work to the employer, then once the work is registered, the employer records the assignment at the Copyright Office, which keeps a record of the assignment in which your employer is the claimant[9]. 

Representations, Warranties, and Indemnity

In the event that you produce work, which allegedly violates the exclusive rights of a third party, then you might be the defendant in an enforcement proceeding. To protect their assets, employers will require you agree to certain representations and warranties in the course of your employment. The most common is that you represent your work is original, and if it is not, then you have permission from the owner to use their original work in your work. If you misrepresent this part of your agreement, then employers also require that you hold them harmless, i.e. indemnify them, against any and all claims arising out of your acts or omissions. In other words, your employer can shift liability for any lawsuit to you if they find that you misrepresented your work.

Licensing Derivative Works 

In the example above, if an artist adapts a pre-existing work into a new artistic medium without consent of the copyright owner, then he or she has infringed upon the exclusive right to prepare derivative works[10]. In the case of derivative works, there are two general approaches. Either the threat of a lawsuit provides the copyright owner with the leverage to negotiate a license and substantial fees for use of their creative work, or, the copyright owner does not settle and pursues a remedy instead.

Remedies for Infringement

Typical remedies for copyright infringement include injunctions[11], where the infringing party is required to cease all use of the work; impounding and disposition[12], where the infringing articles are disposed of or destroyed; damages and profits[13], which includes actual damages and profits, or statutory damages, which can be substantial; and finally, costs and “reasonable” attorneys’ fees to the prevailing party[14], which party very well could be your accuser if he or she proves an infringement claim.

Defenses to Infringement

So what constitutes an adequate defense to copyright infringement? It depends, on the subject matter and exclusive rights involved. For example, a claim against the unlawful sale or distribution[15] of literature[16] or sound recordings[17] might be countered by a right of first sale[18]; thus a market exists for the sale and distribution of used records and comic books. A claim against the unlawful public performance of a motion picture or non-dramatic literary or musical work might be countered by an exemption[19].

Independent Creation

A commonly pursued infringement claim alleges the unlawful reproduction[20] of a copyrighted work, which requires two things be proven in order to prevail: (1) access to, and (2) substantial similarity to the creative work. A common defense is independent creation, which asserts that the defendant did not have access to the work, but rather created a similar or same work independently of the copyrighted work.

Fair Use

Perhaps, the most common defense to unlawful reproduction is fair use[21], an affirmative defense, which means the party raising it agrees that he or she copied, but the law permits it. Only a court has the authority to determine whether a use is fair; thus, to raise the defense requires that one be party to an active lawsuit. The goal is to avoid lawsuits not only because they are time consuming and expensive, but also because of the uncertainty over how courts interpret the statutory guidelines.

The factors courts weigh in a fair use defense are: (1) the purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit, educational purposes[22]; (2) the nature of the copyrighted work[23]; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole[24]; and, (4) the effect of the use upon the potential market for or value of the copyrighted work[25]. All factors are weighed together, which means if one factor is, or is not, in your favor, that does not necessarily mean it is, or is not, a fair use.

Transformative Works: Parody and Satire

Purposes that weigh in favor of a finding of fair use include criticism, comment, news reporting, teaching, scholarship, or research. Transformative works, “add something new, with a further purpose or different character, altering the first with new expression, meaning, or message[26].” Parody and satire are transformative works because with comment and/or criticism they add something new to the original work. However, “[p]arody […] is directed toward a particular literary or artistic work, [and] satire, […] more broadly addresses the institutions and mores of a slice of society[27].”

Spaceballs, Starballz

For example, Spaceballs is a parody based on Star Wars. Starballz, a pornographic animated film, is also a parody of Star Wars, which went to court. The Starballz court quoted its higher court saying, “[Starballz is] a literary or artistic work that broadly mimics an author’s characteristic style and holds it up to ridicule[28].” An entire blog could be written on fair use. The goal here is to cover some of the more familiar terms you might have heard and know how they fit into the greater scheme. 

Invalidity

At the onset of an infringement lawsuit, it is wise to confirm the copyright being enforced is valid. A copyright is invalid if it falls into the public domain. Works published prior to 1923 are in the public domain. Works published without the proper notice © between 1923 and 1989 are also in the public domain. Works published between 1923 and 1963 with notice but without an application for renewal are in the public domain. Consult with an attorney to confirm whether works have fallen into the public domain.

Registration

A copyright is invalid if unregistered. Only registered copyrights may be enforced under federal law[29]. However, if registration is refused, a claim for infringement still may be filed under certain conditions[30]. Even if a copyright registers, then it may as yet be invalidated if it is shown the applicant knowledgeably provided inaccurate information in his or her application for registration, and if known, such inaccuracy would have lead the Register of Copyrights to refuse registration[31].

Public Domain

The best advice is if in doubt, don’t. Don’t use someone else’s work if you are unsure if it is copyrighted. All works published prior to 1923 are in the public domain. That means Victorian inventions like Dracula and Frankenstein are free for all to use. 

Ideas and Facts

Furthermore, ideas and facts are not protected. For example, World War II is an historical fact. Tanks, machine guns, and missiles are ideas. This is why there is a plethora of war games in the market, because everyone can use a fact or an idea! It is only the specific expression of that fact or idea, which copyright protects.

Scenes à Faire/ Stock Characters

If you are creating a character or setting for script, stage, or series, the more delineated your work, the more likely you will be able to enforce your copyright. Copyrights are not tested for merit until they are litigated. The registration process provides a superficial examination; applications are not examined for substance. Thus, if you write, “a land far away,” or create a character that is “a lazy bum,” without sufficient detail, then your work may be characterized as a scenes à faire (common scene) or a stock character, neither of which may be enforceable because of insufficient originality. 

The flip side of the argument is that stock characters or settings that are scenes à faire contain common elements that are not copyright protected. Thus, you may incorporate these common elements into your own characters or settings. An example is you create a hero with a cape, which does not infringe upon Batman because the characterization is too generic to be deemed an original production by its author. You might also create a fantasy world with an elf and princess, but not infringe upon the Legend of Zelda since these elements are too common to create a monopoly on use.

Creative Commons License

If you must use someone else’s work, or if you are a relatively unknown artist that wants to make a name for yourself, then the Creative Commons License is for you. The Creative Commons is an online gateway to communities, which offer access to creative works that are pre-cleared (the person granting you rights in their work actually owns the copyright) and pre-negotiated (the copyright owner already agrees to the terms of use). This licensing a la carte is a way to explore the depth and breadth of the creative enterprise, which copyright law aims to facilitate and to protect.

In Copyright for the Freelance Artist Pt. 4, we will entertain a case study of copyright law at an Atlanta convention, MomoCon. We will discuss the role of cosplay, anime music videos, doujinshi (fan art), and fansubs, and how fans and promoters can shield themselves from liability and comply with the law.

DISCLAIMER: THE INFORMATION CONTAINED IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT LEGAL ADVICE.

The post Copyright for the Freelance Artist Pt. 3: Infringement and Defenses appeared first on Morin Legal.

Copyright for the Freelance Artist Pt 2, by Lee Morin, Esq.

CONTRACT BASICS for the Freelance Artist

THE IMPORTANCE OF EMPLOYMENT AGREEMENTS: The Case of Jack Kirby and Marvel Comics

Whether you transfer ownership of or merely grant permission to use the exclusive rights to your work depends on the contract agreements in place.  Heated debates have arisen where it concerns agreements between freelance artists and publishers that allowed publishers to exploit characters in the comic book industry.

Motion picture adaptations of literary superheroes are an example of derivative works, which provide the film industry with some of the highest earning films of late, grossing more than 15 billion dollars for Marvel, now Disney, since 2000[1].  Because copyright law provides that freelancers can terminate transfers of ownership in the exclusive rights to their work[2], heirs of freelance artist Jack Kirby sued Marvel to reclaim rights to characters Fantastic Four, Hulk, Iron Man, Silver Surfer, Spider Man, Thor, and X-Men[3].

Marvel argued that Kirby produced work as made for hire not subject to termination; thus, Marvel was author and owner; neither Kirby nor his heirs had any claim.  The heirs insisted that Kirby had not irrevocably transferred his rights to Marvel, rather that the transfer was subject to termination after 56 years[4]. After petitioning the Supreme Court for certiorari, parties settled their dispute on confidential terms[5].  Whether freelance artists may terminate transfers of ownership in their works created or published prior to 1978 remains to be seen.  Still, this is a lesson that illustrates the importance of the contract agreement.

THE 3 BASIC CONTRACT AGREEMENTS

When considering which contract agreement is best for you, keep in mind there are three main agreements, which freelancers can use to collaborate.

WORK MADE FOR HIRE

We have already mentioned works made for hire, which the copyright law defines as either a work prepared by an employee within the scope of his or her employment, or, “specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation […][6].”  If the latter, then the parties must sign an agreement attesting to such terms.  In a work made for hire, the employer or party commissioning the work is author and owner; thus, the freelancer does not have any rights to or in the work whatsoever.

ASSIGNMENT AGREEMENT

In the middle of the spectrum is the assignment agreement, which is a temporary transfer of ownership in the copyright of a work.  In an assignment, the freelancer retains authorship and is named as author of the work in its copyright registration; however, the entity to whom the copyright is assigned, whether a publishing company or individual, is owner of all exclusive rights granted in copyright to the work, and known as the claimant.

LICENSE AGREEMENT 

At the opposite end of the spectrum is a license agreement, in which the copyright holder grants an individual or publishing company certain or all exclusive rights to a work under certain conditions, specifying duration and the geographic territories, for fees.  In a license, the freelancer is the owner and the author of record in the copyright registration.  While the copyright code provides for termination of an assignment, termination in a license agreement is controlled by terms, to which parties agree, including payment, deliverables, or quality of product. 

WHICH CONTRACT AGREEMENT IS THE BEST FIT FOR YOU? 

One of the most frequently asked questions I encounter from freelance artists is which agreement is appropriate for their situation.  Many are recent graduates, just beginning their careers. They may have limited resources and market reach, which means they are more likely to benefit from agreeing to a work made for hire or assigning the rights in their work to an established publisher.  Whether you agree to an assignment, which provides for termination[7], or a work made for hire, which does not, ultimately depends on your bargaining power as an artist, which is generally low at the start of any career.

Once your work and reputation have had time to mature, then you may exercise more bargaining power and control over your work.  If you are fortunate enough to have a viable outlet in which to market your work, then you may attract the attention of others wishing to collaborate with you to bring your work into new artistic mediums.  In that case, a license may be your best option because you intend to retain certain rights to your work while exploiting others that can bring your work to new audiences.

An example of this scenario is your retaining print publishing rights while licensing the right to adapt your story, setting, characters, or artwork for film. Last year, I wrote a blog about how freelance artists can market their work to game developers.

In any of the above scenarios, I strongly suggest you hire an agent, who specializes in the industry, or an attorney, who specializes in intellectual property law and transactions, to best represent your interests. An agent may have the relationships that an attorney does not.  On the other hand, an attorney can help you learn how to read and negotiate a contract, which you eventually must be able to do yourself.  An attorney can also draft and provide customized licensing agreements, which can creatively parse your exclusive rights and serve as an instrument by which you make a lot of money.

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Our next blog will discuss copyright infringement, what it is, how to avoid it, and what happens if you sell or display fan art, cosplay, or perform anime music videos at a convention.  We will also address fansubs and selling fan art or cosplay via online vendors like Etsy and Ebay.

DISCLAIMER: THE INFORMATION CONTAINED IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO LEGAL ADVICE.

The post Copyright for the Freelance Artist Pt. 2: Employment Agreements appeared first on Morin Legal.