Copyright & The ArtistJonathan LA Phillips

Shay Kepple Phillips, Ltd.456 Fulton St., Ste. 255Peoria, Illinois 61602309.494.6155jphillips@skplawyers.com

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Thanks to

Peoria Magazines

Arts Partners of Central Illinois

StartUp Peoria

Intellectual Property

As opposed to real property and personalty

Patents – Useful inventions

Trademarks – Indicators of the source of goods

Trade secrets – Secrets unknown to competition

Copyrights – Expressions of ideas

History

U.S. Constitution, Article I, Section 8: Congress shall have the power . . . To promote the

Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Unanimously approved.

Previously encouraged as part of the Committee under the Articles of Confederation.

Letters from T. Jefferson to J. Madison suggesting inclusion in first amendments.

Why the History Lesson?

Fundamental principal to allow artists to make a living

Artists have expressions of ideas, not a physical product, thus they sell rights affiliated with those expressions

How bad would writers have it if they had to write out every book?

The historical background explains why it is okay to exploit your rights, even if you never have before I will be suggesting what you could do to maximize

revenue. I am not necessarily telling you that you have or should do so.

Why do we have IP rights?

The basis for intellectual property is to help the country, not individuals. Incentivize R&D or creativity and prevent consumer confusion.

Intellectual Property has become one of the most valuable assets of today’s business.

A major factor in securing capital. May not be important for the artist in the classical sense,

but as things progress into the information age, very important.

Why Copyrights with Artists?

Not only IP protection If a new way of performing a task – patent Your business name – trademark Secret sauce to your art – trade secret

Most closely tied to the artist

This is how they make a living Selling these rights is how you make money, not selling

objects

A “bundle of sticks” which you can sell individual twigs

What is copyright?

Protects the expression of an idea, not the idea The idea is that of an economic theory, the expression is

the journal article. Others can write about that theory, just not use the way you expressed it.

Once fixed, now creates a set of exclusive rights for the creator

Modicum of creativity, but no sweat of the brow doctrine Duplicate, develop derivative works, distribute, perform

publicly

What is not protected?

Fonts

Useful articles

Blank forms

Titles, band names, slogans, domain names

Ingredient lists

No moral rights in the USA

Who owns the copyright?

Fundamental question. If you don’t have rights, you can’t exploit them.

Vests in author

Works for hire Community for Non-Violence v. Reid

Employee? Done within scope of employment? Commissioned? Has own tools? Makes own rules?

Joint Works Joint ownership

How do you get protection?

Simply fix the work Pen to paper Paint to canvas Save copy to Hard Drive Record to tape, drive, or whatever.

No longer have to place © Berne Convention, amended the 1976 Copyright Act in

1989 Entered into by nearly all the world

Should you register?

Not necessary

Prima Facia evidence of valid copyright

Statutory damages & attorney’s fees

Relatively cheap

“Poor man’s copyright” Has been judicially recognized, but doesn’t show who

wrote anything or if it is original.

Rights

“Bundle of Sticks”

To make copies

To import or export

To create derivative works

To sell or assign these rights

To publicly display

To transmit or display by radio or video

We monetize these rights to make money

Monetization

Freelancers can sell rights they automatically own.

Copies – what most people think of

For example: You sell a painting or website Re-sell copies or code Prevent client or customer from doing the same

Or, you can exploit the fact you know about these rights, and sell them as well

Monetization (cont.)

Sculpture May sell the right to display at location A, but not location

B May sell right to take molds, or may not

Photograph Easily duplicated. Right for copies, especially on the

internet

Import/Export One easy way to monetize is sell different rights in

different countries. Berne Convention.

Summary of Rights

Provided by forefathers

What are the rights

Determine if you own them

If you do, determine how you wish to chop them up

Sell them

Copyright Infringement

Infringement occurs whenever you exercise one of those rights without permission Copying a painting Changing code Publicly displaying a sculpture

Doesn’t matter if there is no profit

Substantial Similarity + Access

Avoiding Infringement

Copyright lasts a very long time

Fair Use is a tough, but not impossible, sell

The internet is dangerous. Very dangerous. DMCA Compliance

Copyright “trolls”

Trolls or not? Troll is pejorative term for an entity exploiting rights to create

a separate revenue stream Sometimes buying rights just to sue/settle, sometimes

creating a new revenue stream E.g. Righthaven v. Malibu Media or Getty Images.

Usually lawyer driven

Risks are high, if you infringe, you are more likely to be caught.

Focus on small business.

Exceptions

Fundamental Conflict with First Amendment

First sale doctrine (§109)

Fair use (§107)

Parody (Campbell v. Acuff-Rose Music, Inc.)

Extent

Questions?

InterBusiness Issues Article http://www.peoriamagazines.com/ibi/2013/oct/copyright-a

nd-artist

Feel free to email me at jphillips@skplawyers.com