What every Artist should know about Intellectual Property & Copyrights
(And why they should care)
© 2009 - T. Reed / TAO X Productions
Before I begin, let me first present you with a brief preface and an official disclaimer.
When I started to write this article, it became clear to me that it would take more than one single quickly digestible blog snippet to cover these deep and sometimes gray uncharted waters. I have decided to release the article as part of a series, which I hope you will continue to tune in to for valuable information and insights regarding subjects of interest to professional and aspiring artists alike. For the first part of this series I want to cover intellectual property rights, including topics ranging from copyright and creative commons, to lawsuits and licensing, to sampling and seeking permissions. If that all sounds too dry, technical, and legalese for your taste, then try substituting the alternate more “Artist friendly” title/description:
“Demystifying Intellectual Property - Why my stuff should be mine, and your stuff should be yours, and how we can learn to share our work with the world, make a profit and not get ripped off along the way”.
No guarantee that reading this series will ensure success on all those levels, but armed with a little information and some diligence, you can vastly improve your odds at being in a position to take the most possible advantage of all the hard work and creativity you put into your craft.
OFFICIAL DISCLAIMER: Let me first preface by saying that I AM NOT A LAWYER! Anyone seeking absolute clarity (if that is even an available option), and actual legal authority on any subject contained inside this article should refer to the appropriate regionally based agencies i.e. U.S. Library of Congress Copyright Office (or it’s International equivalents), the artist’s performing rights organization (PRO) i.e. ASCAP, BMI, SEASAC in the U.S., (If you don’t have one or know what that is, then please, do read on!), or one’s own trusted legal council/entertainment attorney. I won’t go into detailed copyright form specifics (which vary), as these forms and the corresponding information are all readily available via the respective copyright offices in your country of residence.
I am an artist/musician/writer and general renaissance man and freak living in the U.S. who has been in the music business for 2 decades, from struggling artist to successful entrepreneur (and that can just be from one week to the next!) Even though I am approaching this article primarily from a musician’s standpoint, the concepts are generally applicable to other art forms as well, which I will touch on briefly throughout. But what I really want to achieve here is to take this subject beyond the legalese and break it down to the core issues, motivations, and attitudes that are meaningful to us all, and which often (for better or worse), guide our hand in forming our own creative path, and manifest the opportunities (or obstacles) that present themselves along the way.
PART 1 – Introduction
The one thing we should all remember, (artist or otherwise) when approaching the topic of “intellectual property”, (If your first instinct when you saw that word was to go, “What?” or simply tune it out, then this article would be ESPECIALLY helpful to you!), is that every artist is out there trying to express themselves with varying degrees of talent, ambition, and solemnity and respect (or lack thereof) regarding the creative rights of their own works and those of others. With such a broad range of attitudes and misunderstandings that abound on the subject, it’s no wonder that this becomes a world that artists prefer to avoid putting too much thought into. Believe me, skilled artists who are successful in their field are keenly aware and on top of, the terms and issues covered in this article. Their eyes would not glaze over, or stare blankly in confusion if I approached them at a party and asked them what they thought about I.P. rights issues (unless they happened to be “overly infused with the party spirit”, if you catch my drift). For all the struggling artists who are continuously grumbling that they just can’t get a break, the preceding is a very noteworthy, statement so let me repeat it: With almost no exception, “Every successful artist has at least a fundamental understanding of, and interest in, copyright law and intellectual property rights”.
Now let’s get to it. If there is any assumption one would be safe making regarding copyright and IP law, it would most likely be to assume everything you see or hear or read or that is made by man in general, belongs to someone and therefore has inherent protections under copyright, trademark, or patent law. Start there and work backwards with any of the additional verifiable facts that are concrete. There will be plenty of time to deal with gray areas.
Sampling was one of those gray areas a few years back (1980s and 90s), which is no longer AS gray. I will go into greater detail on that subject in another installment dedicated more specifically to that issue. But let’s start by tackling a short list of misnomers and misunderstandings about copyright law (at least as it stands in the United States at the time this article was written). These will begin to open up the discussion to some of the individual aspects involved in the process of understanding IP rights that I will delve deeper into in future installments of this series.
A Few Common Misnomers About Copyright Law
1. I have to file a copyright claim and pay the $30 (as of this writing) to register my song/CD/artwork/literature with the Library of Congress or my work won’t be protected.
NO, not true, once you affix your work to a physical medium you have ownership and copyright to that work. That said, it would be a whole lot easier to prove it in a court of law however, if you bit the bullet, paid the fee, and filed your paperwork.
2. If an artist doesn’t post a copyright notice on their work, then it doesn’t have a valid copyright claim and falls into Public Domain.
And that would have been true… until that law was changed in 1989 to comply with the Berne Convention. Many foreign works originally published without copyright notice before that date, that could have entered the public domain in the United States, have had their copyright restored by the URAA (Uruguay Round Agreements Act), which amended that oversight.
3. I can legally use samples of another artist’s music or clips from movies (without getting clearance) if I: (insert/select ill-founded rationalization here).
A. Only use a little section or mash it up beyond recognition.
B. Am not making any money from sales of the work in question.
C. Still believe that everything you can see or hear on the Internet should be free.
And of course the correct answer to the multiple choice is NO, NO, and NOOOO! Recent court cases have set precedent that pretty much says no to sampling any uncleared bits of anyone else’s work without permission, (and most likely clearance fees) from all interested parties. (More on this later in the series).
4. I can use a portion of someone else’s copyrighted material on a project I’m doing that is not for profit.
Really? Perhaps but only if it complies with Fair Use Doctrine and ‘Fair Use’ is a pretty limited and specific law, which you better understand clearly before ‘assuming’ anything.
And this brings us to the first rule of Intellectual Property law:
Assumption can be a very expensive legal strategy. Don’t do it.
Do your research. If every single note or sound or image you are creating isn’t absolutely painstakingly created by YOU and placed into your 100% original work, then you may want to clean up the piece or track down the appropriate parties to request permission and pay any fees required to use someone else’s material. Anyone serious about making a career out of ‘The Arts’ needs to get serious about the subjects contained in this article/series. Another good resource to help guide you in this process would be to check out the latest edition of Richard Stim’s “Getting Permission” by NOLO Books or any of their other fine books on copyright law and the IP business.
Also, make sure you read the licensing agreements on all the Royalty Free samples and loops you might use as well. They may not all have the same license agreement and specific usage might be restricted. It pays to know. Your license agreement on a royalty free loop disc is a binding contract, be sure you read it before you assume anything. And whenever in doubt, especially when something significant could be on the line, consult a qualified attorney in the area of expertise you require.
WOW, now you might be thinking “That sounds like no fun, what a pain to do all that ‘research’ and ‘reading’ and asking permission and paying fees, instead of just playing with my music toys and making cool sounds and stuff”! If those were the only thoughts that come into your head after reading this so far, then I’d re-examine your desire to make it in the industry of art and keep it just a hobby. Being an Artist who makes their living exclusively from art/music is one of the hardest jobs and courses in continuing education one can engage in. If it were easy, everyone would be millionaire artists, so prepare to dive in, do some extra work and get yourself (and your mindset) ready, so you can not only enjoy what you are doing, but also reap the benefits and rewards from doing professional work that is legally and ethically straight up. If you do your homework ahead of time, and do your job right, you may never have to experience the bitter pill of being on the wrong side of a lawsuit (which by the way tends to be either side, a litigious strategy is a costly money and time drain whether you are the plaintiff or the defendant!
OK I’ve laid out a lot of SCARY warnings and said a lot of NO, so next time tune in for the Arts & Business series where I will provide some Yes answers!
T. Reed - TAO X Productions -– Nightmare Sound Laboratory