Professional Documents
Culture Documents
by Nancy Fulton
● 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.
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.
● 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 Slander (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.
● 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.
● 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.
● 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
● 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.
● 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.
● 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.
Fair Use
● 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
● 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.