Artists and the Law

At last night's TAG General Membership meeting, attorney Tifanie Jodeh of California Lawyers for the Arts held forth about things artists should know when they put their creations out into the marketplace.

(What follows are Hulett's notes from the talk. So let's not anybody think they're verbatim.)

A copyright is legal protection for written work, and covers books, scripts, treatments, or even a paragraph, anything written. A copyright generally takes a year to obtain from the government copyright office.

It generally takes a year to obtain copyright.

The minimum you should do to obtain protection for a written work is:

• If it's screenplay-related material, register the work with the WGAw.

• Complete and mail an application for copyright to the U.S. Copyright Office, sent by certified mail to the copyright office.

• You can also send a copy of the work by certified mail to the Library of Congress or yourself.

A patent is legal protection for an invention or software code that must be specific and unique in character. To qualify for a patent the developer would need to create something new and different from what's come before. (If it were a new program code, for instance, it would need to be significantly different from the program it was attached to.) The U.S. Patent Office requires that new programs pass the "original and different" test to earn a patent.

A trademark is legal protection for a logo, and generally takes 1 1/2 to 2 years to obtain from the government.

Copyright can be owned by individuals or multiple people. If their are multiple owners, the best way to accomplish joint ownership is to set upa company that owns the copright, and then have two or more people own the company.

If you own the copyright of a work and pitch it to a production company, the company respects that because they like to know who owns the chain of copyright. It makes the purchase of a project cleaner and simpler for them, because they will probably be purchasing copyright when they buy the property. (They could also license the property. When that's the case, at some point the rights would revert to the copyright owner[s].)

When someone is optioning a book to develop a property, contact the author's agent or publishing company. It will usually mean paying money for an option. Many times, a person can do a Google search to find out who owns the rights, and if the work has been optioned already.

When rights haven't been cleared, the person developing the property walks a gray line, using something that hasn't been licensed.

To find out if an older work has fallen into the Public Domain (which makes it available for anyone to use), check with the copyright office.

Companies generally shy away from works or projects for which the rights haven't been cleared.

When an artist creates an image from another image, and it's recognizable that the latter image is derived from the earlier one, then it's good to perform due diligence and locate the rights holder -- check web sites, attempt to track and contact the original creator or owner -- and be ready to show that you've made a serious attempt to discover the ownership of the rights. (The Obama "Hope" poster was cited as an example of this.)

When you're employed by a studio, anything that you create for a studio that they've paid for, belongs to that studio. When you work for a studio under a Personal Service Contract, and that contract stipulates that any work you do is owned by the company, it's a good idea to negotiate "carve outs" for projects that you are creating during non-working hours. ("Carve outs" are projects excluded from studio ownership.)

When copyrighting fine art, put a © and your name after everything. When art is being posted on-line, embed a copyright notice in the image. It's good to do as much as possible to protect yourself as much as possible. Once the copyright is officially registered, if it's practical to do so change the © to an ®.

If you believe that a company has taken your image or idea (script, treatment, etc.) without paying for the rights, send a copy of the work to the company along with a letter stating "If you don't want to use this, send it back," so that there is a record. Be a squeaky wheel.

(A few months ago, Facebook tried to change their terms of service to say that anything a Facebook participant uploads onto the Facebook site is owned by Facebook. After a huge outcry, they rescinded the rules. It's doubtful that Facebook could have gotten away with it if they'd made an effort.)

If an idea is developed by an artist that uses a company's copyrighted character, the creator would need to secure permission in writing from the company, or buy rights for the use of that character.

There's usually no need to put dates on the copyright notice for artwork, but dates would be needed for scripts, and treatments for reality shows.

When a studio employee is making a presentation at a studio pitch session, they should ask the producer or executive about who owns the idea pitched, who the rights belong to, etc. (Be clear before going in.)

It's always good to do everything you can do to protect your ideas. When dealing with companies, you'll be able to keep more rights and percentages if you have more leverage.