Like art, everyone seems to have an opinion about law, ownership, and the ethical area between them. Unfortunately, it’s easy to get into situations that are legally and ethically challenging without really trying. There are some fundamental principles that every artist, writer, and musician should understand.
Even Dumb Art Can Be Intellectual
This is the foundation that you’ll build your protection on. However, you must appreciate that you didn’t really create any “thing.” You actually gave shape to an idea, or a juxtaposition of ideas. You own the idea, not the thing.
If this seems like gobbleygook, consider this. You create a character drawing on paper. It’s cool… you give him a name and a backstory and the whole bit. You scan it, clean and color it in Photoshop or GIMP, set some type in Illustrator. Post it here on on Deviant using your laptop and their servers. People view it, (the data gets transfered to their computer), and maybe someone suggests an improvement and digitally notes some changes directly on the JPG.
You didn’t create any of the tools used to shape the image. You didn’t even create the pencil or paper used to draw it. The drawing would not exist without the tools… so the paper and graphite is as much a part of the drawing as the idea. The same is true for the scan, the modifications done in Photoshop, and so on.
A song is the same thing. You didn’t invent the notes, or the keyboard… but the idea behind the juxtaposition of those things is yours. If you create a cool tune and someone records it using a different instrument, it’s still yours.
So, it’s the IDEA that is yours. The drawing is merely a reflection of the idea. When someone uses your drawing without permission, they haven’t stolen your drawing (per se) but rather appropriated your idea.
This is referred to as intellectual property.
Finding Is Not Owning
There are different disciplines of law that manage IP disputes. A copyright is your basic legal claim that you own the IP. This is simple when you sit down at your keyboard, word processor, or imaging station and create something from scratch. But what if you use reference? Maybe you need to see what clouds look like, or want to interpret a classic blues riff, or need help with some prose? At what point does your interpretation of your references and resources become yours? This is the essential question that copyright law seeks to answer. This is also something that you, as a content creator, need to be very sensitive to. When in doubt, err on the side of caution. Copyrighted material is often marked with a © symbol, but not always! If a © does not appear near the content, it still may be the IP of someone. (There are exceptions, below.)
A trademark is the ownership of a specific mark, like a logo. Trademarks are classified and categorized using a complicated typology of terms when they are registered. Trademarking a mark is a basic process, and indicated by a ™ symbol. If the mark is going to have longevity and be valuable over time, most individuals and companies opt to register it with the federal trademark agency. Once registered, (indicated by a ® symbol), it has an additional layer of legal protection. Registering marks is expensive but can have international application. Any dummy that makes a logo can put a ™ on it without issue, but some people like to put a ® next to their marks… and that’s not accurate.
The first step in protecting your IP is to copyright it. You can find the forms for doing it online here:
Public Domain, Open License, Contractual Use, And Other Big Words
Protecting your stuff from theft, appropriation, and misuse is the easy part. It really is. You made it, it’s yours.
But what about when you WANT other people to see it, enjoy it, interact with it, or even use it for their own projects? You’ve spent some time making sure everyone knows it’s yours, now you want to give it away! (Some strings attached.)
If there are no strings attached, and you don’t care who uses it, or why, or even if they credit you, you can “publish” it as free use. You might even have people say that they made it, (not you). This is the most Wild West method of getting your stuff out there, but you need to be prepared that once you let it go, it’s not yours anymore. (You cannot go back and retroactively lay claim to the material after it’s published using these loosest legal protections.)
Contracts and Usage Agreements basically provide exceptions for IP protections. The contract basically says, “I own the shit out of this drawing, but you can use it for this very specific purpose provided that usage is within these very specific constraints.”
It’s wise when collaborating or sharing your stuff to at least have a gentleman’s agreement on what is permissible use. Anything in static writing should be good enough. Alteration fraud is rarely a problem; misunderstanding the nature of the agreement is where most conflicts arise. It’s good to be as specific as you possibly can. The agreement basically outlines these conditions and the two (or more) involved parties basically agree to it. Off you go, working together!
The agreement should outline the following aspects:
• The person creating (and owning) the IP
• A name and description of the project that the IP is going to be used for
• The number of times the IP will appear in that production
• The instances where the IP will be allowed to appear outside of that production, (such as for promotional purposes… and remember, only promotions for THAT project, not “all” promotions created by the other party. See how this stuff can be manipulated?) Note: Many contracts explicitly stipulate that the art is okay to use for promotional purposes for that project only.
• The compensation required by the IP owner/contributor.
A Quick Note About Cash
Compensation isn’t always money. It might be production credits, or dividends on revenue, foot massages, or something else. The agreement should be as specific about compensation as it is about usage.
What happens if:
• The project is cancelled before you provide your score/art/UI design?
• The project is cancelled after you provide your stuff?
• If the project’s scope changes?
• The end production goes all Angry Birds viral?
• Your contribution keeps getting revised and changed?
• You cannot agree on creative direction and mutually decide to part ways?
• One of you is not happy with the creative direction but the other remains committed to it?
• What, PRECISELY, you are contributing.
• When, PRECISELY, you are contributing it.
• What process you will follow for review, revisions, and so on.
There are lots of gray areas that can produce conflicts, especially when it comes to individual standards or company policies in casual settings.
Consider this practical situation:
I wrote this article but I used online reference, and Kong staff and volunteers are at liberty to lock or delete it.
– Who owns this post?
– What rights do I have?
– What rights do my resources have to prevent me from interpreting their content?
– What rights does Kong staff and volunteers have to edit this content?
– Could you, Kong staff, or volunteers sell it?
– Where would someone look to find this information?
– How might I protect this article?