There are lots of things for creatives to think about beyond having good ideas. We’re here to help, with our advice series Stuff They Don’t Tell You. James Cartwright explores how to protect your work and the wonderful word of copyright.
Illustrations by Edward Monaghan.
We all need to learn about the letter of the law and what it can do for you, the creator of beautiful things; about how slow, imperfect and often cumbersome legislation could be the only thing to protect you from being ripped off in this cutthroat shark tank of an industry. Specifically, we’re looking at copyright law, the most murky-yet-important of all the laws; so vital to the creative industries that record labels, film studios and other powerful media are hellbent on pursuing its liberal application. And perhaps you should be, too.
First things first, what exactly is copyright? It’s your legal right to the exclusive use and distribution of anything you’ve created. It lasts a long time; your whole life, plus an additional 25 to 70 years after your death depending on what you’ve created and where you live. For example: Close your eyes. It’s 1977, America, you’re Marvin Gaye and you’ve just penned the exceptional dance floor filler Got to Give it Up.
It’s a massive hit. Crowds go wild for it. Flash forward to 2013, 29 years after your death, when Pharrell Williams and Robin Thicke decide to get rich by rehashing that very same banger of a tune. That’s when copyright has your back to the tune of $7.4 million, and your offspring are mighty glad that your rights outlived you. Without copyright, they’d have had no recourse to stop Williams and Thicke in their tracks.
Of course it’s a little more complicated than simply raking in millions, and the various nuances of copyright law are actually quite hard to grasp. For starters, copyright law doesn’t protect your ideas, only their expression, which permits many creative disciplines to keep making new material with the same fundamental elements. In the case of Got to Give it Up, it wasn’t simply that Marvin’s chord progressions or arrangements had been copied, but that his unique creative expression of those elements were deemed to have been taken and reused.
In novels, comics, plays and movies, that means the same basic narratives can be reimagined with different expressive flourishes – the narrative framework of Batman, Spiderman and Superman is more or less identical, but the creative expression of those fundamentals are so varied that they become distinct entities in their own right.
In recent months this issue has been debated in relation to Guillermo del Toro’s Oscar-winning film The Shape of Water, that many have suggested bears numerous parallels to Let Me Hear Your Whisper, a 1969 script by American playwright Paul Zindel. Both stories feature a female janitor working a night shift in a lab in which an aquatic creature is held captive and subjected to scientific probing.
The janitors regularly bring food to their respective creatures, and dance with a mop for them in front of their tanks. Romance blossoms, and both janitors vow to rescue their watery lovers by means of a laundry basket after discovering that they’re being used in a secret military experiment and feted to an untimely death.
These similarities prompted the estate of Paul Zindel to file a lawsuit against Fox Searchlight for copyright infringement, calling The Shape of Water an “…obviously derivative Picture.”
“When you're looking at the narrative of a story,” says copyright lawyer Katie Lane, “I think the thing that you need to look at in terms of a potential copycat is, did they tell an original story around a basic idea, or did they really copy scene structure and the arc of the story?”
The same rule about significance applies to visual work. Have the significant elements of a photograph or illustration been replicated directly, or are there just similarities?
“If we were in court, and you were suing me for that story, one of the things that we would look at is whether I had access to your story prior to making my own.” Katie says. “That's gonna be one thing the court looks at to determine whether this is a copy versus just two people coming up with a story around the same idea expressed in similar ways.” The Shape of Water suit is pending.
While copyright is complicated, it needn’t be daunting. There are a few key things you need to know about copyright to ensure that your creations (songs, comics, paintings, photographs, short films, screenplays, poems and, bizarrely, atlases) and their potential earnings are guarded within a legally enforceable framework. In the majority of countries, in fact, copyright protection is afforded automatically, meaning you have immediate legal rights without having to lift a finger.
But when you next start worrying about copyright, try to keep the following points in mind...
What’s your financial game plan?
“Cash rules everything around me” spat Wu-Tang Clan on C.R.E.A.M. Fundamentally, copyright is about protecting the benjamins, and making sure you get paid what you’re owed for what you produce. As a freelancer, it’s important to think about how and when you want to be paid before you publish a project or agree to produce work for a client, and work out what kind of rights you want to have over what you create.
Copyright isn’t a single rule that applies to all creative work, but rather a suite of different rights and protections that you, the creator, can license as you see fit. You control who can copy, perform, translate, distribute, display and remix your work, and each time you grant permission for someone to do any of those things, you get to decide how much you want to be paid.
If your goal is a big paycheck, it’s best to sell all of those rights, at once, to your client—invariably they’ll want to buy them outright. But if you’ve created work that has greater earning potential over a period of time (close your eyes once more and channel Marvin) then maintaining copyright ownership and licensing specific rights for specific projects might be the best way to make more cash over time.
Wrote a song that you’d like to sell for multiple soundtracks? Keep those rights. Created a character upon which you’d like to base a series of novels? Keep those rights. Put together an article on copyright for a reputable editorial platform? Show me the money guys; the rights to this piece are all yours.
Have you registered your work?
In the UK and EU, the application of copyright is automatic, but in countries like the US copyright is a slightly more complex process. Theoretically protection is automatic, but really, you’re only fully protected if you register your work for a small fee.
“One of the myths about copyright registration is that you can mail it to yourself and that is proof that you created it,” Katie says. “You can't, but the idea is similar.”
Registration of copyright in the US proves categorically that you own the rights to the work, and doing so entitles you to complete legal protection. It can only be done at Copyright.gov. Once you’re registered, “You can sue if you need to sue,” Katie explains.
“So if somebody is infringing your work, you don't have to take any additional steps. You can go ahead and file the lawsuit to prevent them from misusing your work. If you have registered within 90 days of publishing and you win, you are eligible for statutory damages. And there's the potential that you can have the infringer pay your attorney's costs.
“Having a registered copyright makes it much easier for you to get an attorney if the need arises, because the attorney can see, based on the registration, how likely it is that you'll win and they'll get paid.”
In the worst case scenario if you don’t register and have to go to court, not only would you need to backdate your copyright registration and make payment before taking legal action, but you’d have no rights to reclaim your legal fees regardless of the outcome of the case.
Who are you working for?
Before making any work, it’s important to be aware of who you’re working for. If it’s just for yourself, everything is simple, you can just sit back and create. If you’re contracted to make work, a new set of rules applies, and if you’re employed full-time but moonlighting making freelance work in your evenings, then the picture is further clouded.
If you’re commissioned to make work – what’s called work for hire in the US – then the ownership of copyright needs to be agreed in a contract before you get to work. If there’s no contract, the rights to anything you produce remain under your ownership, but a typical contract will lay out in detail the extent to which you transfer those rights to your client. Typically you’d hand them all over, but again you have the ability to negotiate your own terms in accordance with your fees.
A different set of rules applies for full-time employees of a company, for whom the copyright for anything they create at work rests solely with their employer. But this is 2018, we’re millennials, and pretty much everyone has a side-job, which is where fresh problems can arise. The golden rule is not to make any personal work in office hours, or to use your employer’s equipment to execute it—if you do, it’s entirely within their rights to claim ownership of it, and if they own it, you can’t get paid.
Do you understand fair use?
There are a few instances in which the copyright of a registered work can be set aside by others, including for non-commercial and educational uses, as well as in critique and satire. It can also include work that is deemed to be “transformative,” in which the message, aesthetics, insight and understanding of a work is changed. If someone parodies your creation, there’s really nothing you can do.
Confusingly, you can take action if a publication uses your work for the purpose of critique, although it’s highly unlikely you’d be able to claim any compensation. Say you’re an illustrator, and a blog features some of your work just to make fun of it. You’re well within your rights to request that your imagery is removed. Where online publishing is concerned, taking care of this really couldn’t be easier. Under the Digital Copyright Millennium Act you simply file a short report and the web host is obliged to remove the content within 48 hours.
The only question then is whether the free speech of your critic is more important than your right to get paid. (FYI, the answer is always free speech).
Feel the Berne
Berne is what’s keeping you safe in this increasingly globalised world. It’s a convention that ensures that multiple countries uphold a similar copyright standard, and that residents of foreign countries are entitled to the same rights as a nation’s citizens. If a Dutch infringement is made on material protected under UK copyright, the British copyright holder is equally protected under Dutch law. If you have any international clients, the Berne Convention is one you should get to know.
If you spend a lot of time working for international clients, it's worth having a deeper understanding of the Berne Convention. You can read an executive summary here.
“Usually it's easiest for people to try and enforce their rights from where they're sitting,” Katie says. “It's easier for you to go to an attorney down the road and say, ‘Hey, help me out, somebody's infringed my work,’ than it is for you to find an attorney in the United States and say, ‘Hey, there's somebody in your country, please make them stop doing what they're doing’.”
Got your own lawyer? No? Get acquainted with one just in case. It’ll make your life easier, particularly if you just can’t be bothered to think about copyright anymore.
Are you being a d**k?
This last one is more to do with having a moral compass than enforcing your legal rights. In the digital world, opportunities to steal work are rife, whether you’re mimicking the style of a famous illustrator or pinching beats for a new tune. Most of the time this kind of activity can’t be pursued as copyright infringement and that presents a particular kind of frustration for those being ripped off.
To quote an often-copied illustrator who asked to remain nameless, “You have to wonder about the personal character of someone who steals like that. No one's perfect, and of course, I have my influences as well, but I think the most important value is to pursue truth in whatever you make.
“Art's supposed to be important, isn't it? So how can you distance yourself so far from something that's supposed to embody your own personal spirit. There seems to be something a bit sacrilegious about that.”
And to paraphrase him more succinctly – don’t be a dick.