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Primer: Intellectual Property Right Fundamentals

by ​Nancy Fulton

Introduction & Disclaimer

● I’ve been writing, producing, and publishing, profitably for more than 20 years. I’ve both
bought and sold intellectual property, I’ve licensed work to others, and have purchased
licenses from others as well.
● That said, I am not a lawyer, and the information presented here should not be taken as
legal advice.
● It should be a starting point for exploring the intellectual property you own, can sell, want
to buy, plan to share, and understanding how to protect your work while protecting the
rights of others.
● Professional content creators like writers, publishers, producers, cinematographers,
performers, programmers, and other content must understand their rights as well. They
create and sell intellectual property for a living.

What is Intellectual Property?

● Words, music, lyrics, drawings, mechanical designs, product packaging, images,


programming code, logos, product names, etc. are all forms “intellectual property” that
can be secured, licensed, purchased, and sold.
● Intellectual property is as real as physical property. Using a scanned Mickey Mouse logo
on coffee cups you sell on ebay can have financial repercussions larger than stealing a
car.
● Many companies make billions creating, selling, and licensing intellectual property.
Movie studios are in the business of buying, licensing, and creating intellectual property
and selling it over and over again in a variety of ways for decades.

4 Kinds of Protection

● Patent ​for machines and mechanisms (and sometimes code fragments like Amazon’s
“one click” purchase button).
● Trademark / Service Mark​ is a word, name, symbol, used to brand a product or service
that comes from a given provider.
● Copyright​ protects creative, intellectual, or artistic forms, or "works". Including books,
screenplays, poems, lyrics, motion pictures, choreography, musical compositions, sound
recordings, paintings, drawings, sculptures (http://www.copyright.gov/circs/circ40.pdf),
photographs, computer software, radio and television broadcasts, and industrial designs.

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Trade Secrets​ are recipes, formulas processes, techniques that a company can restrict
employees and others from sharing through contracts.

More Exotic Protections

● Right of Publicity / Personality Rights​ are the rights an individual has to control the
commercial use of his name, image, likeness, or other aspects of one's identity. It can
survive death in some but not all jurisdictions (ala Elvis Presley).
● Privacy Rights ​allow people to protect themselves from unreasonable intrusion, or
appropriation of their name or likeness, unreasonable publicity given to their private life,
publicity that unreasonably places them in a false light before the public.
● Can sue over Libel​ (publishing a false statement that is damaging to a person's
reputation; a written defamation) ​and Slande​r (the action or crime of making a false
spoken statement damaging to a person's reputation).

Patents

● Patents protect the novel and unique feature or features of an invention. What is novel
and unique must be measured in terms of what already exists anywhere in the world
(prior art).
Patents can be use to protect machines, algorithms, key features (curve on a high heel
shoe), etc.
● Must be registered in multiple countries.
● Provide 17-20 years of protection in the US.
● Allows patent holders to sue people who infringe on their work by selling products that
use it.

Trademark & Service Mark

● Used to brand products and services with a mark that people can associate with a given
manufacturer.
● Allows companies to associate a given quality of service with their company over time.
● Phrases, generally, cannot be trademarked. They are “informational”. “Made in the
USA” for example cannot be protected.
● Titles cannot be trademarked.
● Unique spelling of words, and fabricated words, can be trademarked. Liked Xerox.
● Logos comprised of words or names uniquely formatted (like the Disney logo) can be
trademarked.
● Use of these words in your product or service is something you can be sued for,
particularly if such use can be seen as an endorsement.

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Copyright is Key for Most Creatives

● An individual acquires a copyright in something (written, drawn, composed, filmed, etc)


second they create it and capture it in a tangible media (paper, hard disk, clay, etc).
● Creators don’t need to register the copyright with the copyright office in order to own the
copyright for what they’ve created, but they get significant protections and benefits if they
do.
● Companies automatically own the copyright on work done by employees who use the
company’s tools and resources to create something, particularly if the work is created
during time the company is paying for. ​http://www.copyright.gov/circs/circ09.pdf
● Companies do NOT own the copyright on work done by contractors/non-employees
even if the work is created during time the company is paying for and/or on company
equipment.

Copyright Owners Have the Following Rights

● Right of Reproduction:​ Disney can make as many Mickey Mouse films, toys, posters,
as it likes.
● Right of Distribution​: Disney can sell as many of these items as it likes.
● Right to Create Adaptations/Derivative Works:​ Disney can create Minnie Mouse, and
little Mickey Mice
● Performance Rights:​ Tennessee Williams could put up his play, A Streetcar Named
Desire as often as he liked.
● Display Rights: ​George Lucas to display Star Wars in as many theaters as he liked.
● All of these rights in a copyright can be bought, sold, legally enforced (to a greater and
lesser degree varying by country) ​http://en.wikipedia.org/wiki/Moral_rights
● Copyrights can be licensed to others for a given location, a given period of time, under a
given set of conditions.

Duration of Copyright

● Works created after 1978, copyright duration is 70 Years + the Life of the Joint Author
(or longest lived Joint Author)
● Works made for hire and works recorded as “Anonymous” are protected for 95 years
from first publication or 125 years from creation, whichever is shorter.
● The rules before 1978 were slightly different, and the rules before 1909 were significantly
different. For full details, go here: http://www.copyright.gov/circs/circ15a.pdf
● Copyrights are inherited by heirs when someone dies, which create enduring financial
relationships between family members.

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● Copyrights are recognized internationally, and registering them in the US protects them
worldwide.
● Practical ability to enforce copyright varies worldwide, and specific terms vary.
(​http://en.wikipedia.org/wiki/Copyright​ &
http://www.rightsdirect.com/content/rd/en/toolbar/copyright_education/International_Cop
yright_Basics.html​)

Joint Copyright & Community Property

● If two or more people work together to create a joint work, with the intent that their
contributions will be inseparable or interdependent parts, they both own the resulting
work.
● Either party can sell the work at will provided that they give the alternative copyright
owner an equal share of the proceeds.
● So if two or more writers work on a script, and they have no agreement asserting that
they must all agree to a sale, they can each sell the content to someone else. This
means that a producer who buys the script from one may find another company can
create a movie using the same script.
● Furthermore, copyright holders must share proceeds with joint creators in perpetuity
which may ongoing accounting over time.
http://www.mccarter.com/Joint-Ownership-And-Assignments-Of-Intellectual-Property-Rig
hts-Part-II---Copyrights-05-27-2011/
● Copyrights are “community property” of a marriage in California.
http://www.la-familylaw.com/copyright_community_property.html

Contractors & Copyright

● If a producer “hires” a cinematographer to shoot some or all of a film, and doesn’t get a
release, the cinematographer owns the footage even if it is not in their possession.
http://www.copyright.gov/eco/help-author.html
● Producers must get a release to use it. A cinematographer can usually get a distributor
to “pull” a film from distribution by saying he owns a copyright to some or all of the
footage in it.
● Cinematographers who want to guarantee they are paid by a producer can put in their
agreement that rights don’t transfer until they have been paid in full. This kind of
condition can be put in all work for hire contracts (writers, musicians, etc).
● Most releases/contracts created by companies provide a full transfer of rights from the
creator with or without payment. Producers should have contracts with all creators
before they start work.

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Let’s Talk About Music

● When The Beatles created & performed Lucy in the Sky with Diamonds, they created
several things:
○ A Musical Composition owned by Lennon & McCartney
○ Lyrics Created by Lennon & McCartney
○ Several recorded performances owned by all four Beatles
● You can go to Harry Fox to purchase the “mechanical rights to a song” so you can play it
at events or put it in a movie.
○ https://www.harryfox.com/license_music/what_is_mechanical_license.html
● ASCAP, BMI, and SESAC protect musicians against the unlicensed use of their music in
public, and at events, and in media. They are very proactive enforcers and violations are
very expensive and very easy for them to enforce.

Why Register Your Work at the Copyright Office

● Read what the US Government has to say: ​http://www.copyright.gov/circs/circ01.pdf


● Mailing the work to yourself does nothing. Registering a script at WGA just puts a hard to
get copy on file at WGA for 5 years.
● Register your work at the copyright office (Copyright.gov) before distribution. It takes 20
minutes and provides meaningful protection & important benefits.
● Prima Facie proof of ownership is copyright registration. So if you send out an
unregistered script and someone else registers it at the copyright office, you’ll have to
prove in some court somewhere that you created it.
● You can receive Statutory Damages if you register your copyright.
○ Without registration, you have to prove you’ve been financially harmed by a
violation, and your compensation is based on those damages.
○ With registration, you get paid a set amount based on each instance of violation
you prove. $750-$150K each. Higher rewards for “willful violation”. Someone
putting your song in their video.

Public Domain & Royalty Free

● Content created long ago, like civil war pictures and Dickens stories, are out of copyright.
You can used this work in your work, although there are issues. If you copy a photo of a
Rembrandt from the British Library, the photo is under copyright, just as if that
photographer took a picture of a cat.
● Work created by the government (pictures they take of war, space, cities, maps they
create etc) are often public domain, but you always have to check.
● You can find public domain libraries for old images, pictures, music, everywhere. You
always have to research these things to ensure they are truly public domain before you
use them.

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● Royalty Free content (Pond5, Clipart.com, etc) is work you purchase all the rights for.
Read the details of the license carefully.
● Note that many photographers, cinematographers, and others could earn more if they
licensed more work through Royalty Free aggregators. Those aggregators sell the work,
and can provide better enforcement for the artist.

Fair Use

● Sometimes it is possible to use small bits of something otherwise protected by copyright


in an educational or creative context. You have to be very careful…and if you plan to sell
or widely distribute the content you must work with an attorney.
● The purpose and character of the use, including whether such use is of commercial
nature or is for nonprofit educational purposes
● The nature of the copyrighted work
● The amount and substantiality of the portion used in relation to the copyrighted work as
a whole
● The effect of the use upon the potential market for, or value of, the copyrighted work

What Can’t Be Copyrighted

● Ideas, Slogans, Titles, Commonly known information are a few of the things you can
copyright.
● Your text description of the revolutionary war can be copyrighted.
But someone else can write up new text using exactly the same facts and not be in
violation of your copyright.
● Stories that people tell but don’t write down.
● Choreography (must be recorded to be protected).
● Fashion (useful articles) are not protected (unique functional design features may be
patented).
● Recipes (Coke & KFC fried chicke are protected as “trade secrets”)

Actors/Celebrity Image

● Right to Privacy & Right to Commercial Use of Image


● If people are “public figures” their image can be captured/used in news/satire pretty
freely.
● Their image can’t be used to “endorse” products, services, etc. without their permission.
● Non-News/Satire use is not protected. Elivis, Marilyn Monroe estates prosecute useage.
● Defamation, Libel & Slander are not permitted
● Satire, which is saying something that clearly can’t be true, is permitted.
● Information in public documents can be used.
● Seek permission and/or fictionalize work. Hide identities of characters.
For more details, look at:

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http://helensedwick.com/how-to-use-real-people-in-your-writing/ ,​
http://www.scriptmag.com/features/columns/meet-the-reader-ray-morton/meet-reader-bi
o-tricks​ AND ​ http://fairuse.stanford.edu/overview/releases/when/

Some Stories & Additional Data

● Disney & Snow White: Disney made his first animated feature using a public domain
story people knew and loved, which gave him a ‘ready market’. Disney owns the
artwork, images, and versions of the characters they created.
● Disney & Winnie the Pooh:​ Disney purchased the rights to Winnie the Pooh and in
negotiations with the rights seller (the comic book writer who licensed the work from the
author’s widow) her right to royalties on derivative works were lost.
● The UK Government and Peter Pan: Peter Pan was licensed by Disney and it has now
come out of copyright. Disney has created a bunch of new shows based around their
version of Tinker Bell. Many people have produced Peter Pan movies because it’s out of
copyright. ​Except in the UK.
● Bars are sued for illegal use of music. Even a band covering a song in a bar can result in
huge costs.

The easiest way to be safe is simply to create all the content you plan to distribute yourself or by
working with people you pay and get releases from, or by purchasing content from aggregators
who gather up the work of content for others to purchase. Be aware whenever you’re using
someone’s image, or someone’s artwork, in a way that might be perceived as “endorsement” or
in a way that makes the non-paid for work deliver the key value in a work. When in doubt, get
releases and permissions.

Remember I’m not a lawyer, so you shouldn’t rely on any of this information in making legal
decisions. I’m providing the overview so when you speak to your lawyer you’ll have some grasp
of the ideas and lingo involved.

© 2015-2017 Nancy Fulton 7/7

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