"Your Work, Your Rights" Seminar by Maureen Dilg

Thanks to Maureen Dilg for writing up rights seminar write up

-SA 

I recently attended a short seminar on creator's rights presented by John D. Mason, ESQ a principal with the The Intellectual Property Group, PLLC based out of Baltimore and DC (he gave me permission to include his email: artlaws2@aol.com).  John gave one of the most easy-to-digest presentations on this topic that I have heard.  He really knows the business, and was able to explain it in a way that the artists in the room could easily grasp.  In short, he gets mad props for breaking it down, as does the Art Director's Club of Washington DC for hosting this free event.

The audience consisted mostly of graphic designers, which added an interesting twist to the copyright conversation for me, as I have primarily looked at the laws as a buyer of photography.  We spent a good deal of time discussing the law, the digital age and how creators should protect themselves.

With all this fresh in my mind, the following is my characterization of Mr. Mason’s lecture:

Register! Register! Register!
It's pretty simple, if you want to sue for an infringement your work has to be registered.

Even better, if you want to sue for maximum damages, you need to make sure you registered your work prior to publication.  Photographers can register large numbers of images at one time on a CD, so do it!  Otherwise, you will most likely only be eligible for an award of net profits which can be very little (especially in web and digital products).

Not a U.S. citizen?  You can still register your work in the U.S.

Not a photographer?  If you are a writer, painter, designer, etc. its encouraged that you register each work prior to publication.

A certificate of registration also helps prove ownership in court.

Get it (or Give it) in Writing

If you are taking a freelance assignment or a work-for-hire project, you should have a contract, in writing, signed by both parties.  I know this may seem simple to some of the folks reading this, but I have been amazed at the amount of verbal agreements between established companies and artists. Written agreements that are signed and acknowledged by both parties are better because the intent of both parties is clear.

When granting rights or a license to your work, create a contract or agreement in writing that is signed by both parties.  Be clear and precise in what rights you are granting, and which rights you plan to keep.  An invoice is usually not enough as they typically do not include enough detail or signatures.

Read it, Understand it

Again this may seem simple to some, but if you are given a contract to sign, read it and make sure you understand what it says.  If you don't agree, speak up.  This does not mean that the company hiring you or licensing from you will change their terms, but they definitely won't if you don't ask.

Creative Commons Licenses

The room agreed that the idea of Creative Commons licenses is great in theory.  It helps simplify granting legal rights for amateur artists.

It is not recommended that professional artists use these licenses.  They are usually too broad.  Instead, an IP lawyer can help you draft licenses that will properly protect you and your work.

As a buyer, I have to say be wary to other buyers accepting these licenses.  If you can, get the artist to sign your own license to guarantee 1) you are getting the rights you need, 2) the artist is truly the copyright holder.  If not, you could be liable for an infringement (in addition to the person making the false claim).

Fixed and Publication

The audience shared a lot of concern about determining what constitutes being "fixed" in the digital age.  With photos its pretty easy, you press the shutter button, the image is fixed.  If you make changes to those fixed files, they are derivatives of the original.

In the case of graphics which may include several unique photoshop layers, etc., each unique layer could be considered a fixed original.  The artist should store a copy of the files they want to protect, date its creation and register it.

In regard to publication, I was surprised to learn that a work can be considered published just by being sent for review.  If you send some images to a magazine for consideration, the images can be considered published under copyright law even if they never see the light of day in a physical publication.  So again, make sure you register your work, even if you are only sending images for consideration.

In general, the group agreed that the laws have not kept up with the digital age.  In regard to Orphan Works, the consensus was that it has to change, and will.

I need to add my disclaimer, that these are just my notes.  I am not a lawyer.  I tried to keep it simple and hence may have missed a nuance.  I highly recommend you consult the U.S. Copyright website and an Intellectual Property Rights lawyer for specific advice on how best to protect your work.

-Maureen Dilg

Washington, DC

Comments

[April]

Thanks Maureen for a timely reminder. And I had no clue that something sent out for review could be considered published already...wow...