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Copyright & The ArtistJonathan LA Phillips
Shay Kepple Phillips, Ltd.456 Fulton St., Ste. 255Peoria, Illinois [email protected]
creativecommons|attribution-noncommercial-sharealike 3.0
Thanks to
Peoria Magazines
Arts Partners of Central Illinois
StartUp Peoria
Intellectual Property
As opposed to real property and personalty
Patents – Useful inventions
Trademarks – Indicators of the source of goods
Trade secrets – Secrets unknown to competition
Copyrights – Expressions of ideas
History
U.S. Constitution, Article I, Section 8: Congress shall have the power . . . To promote the
Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Unanimously approved.
Previously encouraged as part of the Committee under the Articles of Confederation.
Letters from T. Jefferson to J. Madison suggesting inclusion in first amendments.
Why the History Lesson?
Fundamental principal to allow artists to make a living
Artists have expressions of ideas, not a physical product, thus they sell rights affiliated with those expressions
How bad would writers have it if they had to write out every book?
The historical background explains why it is okay to exploit your rights, even if you never have before I will be suggesting what you could do to maximize
revenue. I am not necessarily telling you that you have or should do so.
Why do we have IP rights?
The basis for intellectual property is to help the country, not individuals. Incentivize R&D or creativity and prevent consumer confusion.
Intellectual Property has become one of the most valuable assets of today’s business.
A major factor in securing capital. May not be important for the artist in the classical sense,
but as things progress into the information age, very important.
Why Copyrights with Artists?
Not only IP protection If a new way of performing a task – patent Your business name – trademark Secret sauce to your art – trade secret
Most closely tied to the artist
This is how they make a living Selling these rights is how you make money, not selling
objects
A “bundle of sticks” which you can sell individual twigs
What is copyright?
Protects the expression of an idea, not the idea The idea is that of an economic theory, the expression is
the journal article. Others can write about that theory, just not use the way you expressed it.
Once fixed, now creates a set of exclusive rights for the creator
Modicum of creativity, but no sweat of the brow doctrine Duplicate, develop derivative works, distribute, perform
publicly
What is not protected?
Fonts
Useful articles
Blank forms
Titles, band names, slogans, domain names
Ingredient lists
No moral rights in the USA
Who owns the copyright?
Fundamental question. If you don’t have rights, you can’t exploit them.
Vests in author
Works for hire Community for Non-Violence v. Reid
Employee? Done within scope of employment? Commissioned? Has own tools? Makes own rules?
Joint Works Joint ownership
How do you get protection?
Simply fix the work Pen to paper Paint to canvas Save copy to Hard Drive Record to tape, drive, or whatever.
No longer have to place © Berne Convention, amended the 1976 Copyright Act in
1989 Entered into by nearly all the world
Should you register?
Not necessary
Prima Facia evidence of valid copyright
Statutory damages & attorney’s fees
Relatively cheap
“Poor man’s copyright” Has been judicially recognized, but doesn’t show who
wrote anything or if it is original.
Rights
“Bundle of Sticks”
To make copies
To import or export
To create derivative works
To sell or assign these rights
To publicly display
To transmit or display by radio or video
We monetize these rights to make money
Monetization
Freelancers can sell rights they automatically own.
Copies – what most people think of
For example: You sell a painting or website Re-sell copies or code Prevent client or customer from doing the same
Or, you can exploit the fact you know about these rights, and sell them as well
Monetization (cont.)
Sculpture May sell the right to display at location A, but not location
B May sell right to take molds, or may not
Photograph Easily duplicated. Right for copies, especially on the
internet
Import/Export One easy way to monetize is sell different rights in
different countries. Berne Convention.
Summary of Rights
Provided by forefathers
What are the rights
Determine if you own them
If you do, determine how you wish to chop them up
Sell them
Copyright Infringement
Infringement occurs whenever you exercise one of those rights without permission Copying a painting Changing code Publicly displaying a sculpture
Doesn’t matter if there is no profit
Substantial Similarity + Access
Avoiding Infringement
Copyright lasts a very long time
Fair Use is a tough, but not impossible, sell
The internet is dangerous. Very dangerous. DMCA Compliance
Copyright “trolls”
Trolls or not? Troll is pejorative term for an entity exploiting rights to create
a separate revenue stream Sometimes buying rights just to sue/settle, sometimes
creating a new revenue stream E.g. Righthaven v. Malibu Media or Getty Images.
Usually lawyer driven
Risks are high, if you infringe, you are more likely to be caught.
Focus on small business.
Exceptions
Fundamental Conflict with First Amendment
First sale doctrine (§109)
Fair use (§107)
Parody (Campbell v. Acuff-Rose Music, Inc.)
Extent
Questions?
InterBusiness Issues Article http://www.peoriamagazines.com/ibi/2013/oct/copyright-a
nd-artist
Feel free to email me at [email protected]