We’ve been wanting to expand on our very popular Copyright Basics for Graphic Designers series and would like to know what your questions about copyright are – what is, after reading the series, still unclear to you – and how we can improve our app further to meet your needs.

Grab this unique opportunity to ask your copyright basic question and get an answer from an experienced IP lawyer

If you’re unsure about the extend of your IP rights, chances are other people are wondering the same thing so please feel free to shoot your questions either in the comments section below or on our forum.

The best questions (and their answers) will be published in a Part 4 of our Copyright Basics series.

PS: Before asking your question, remember to read through the excellent:

Copyright Basics for Graphic Designers Part 3

Chris Human is a brand strategist and has been an essential and proactive partner in Myows – online copyright protection since the conception stage of the app.

He’s the custodian of the Myows brand, our public voice and is to be thanked for the carefully crafted copy we see inside our Myows accounts – as well as some wicked blog articles (like for instance The Small matter of Creative Zeitgeist or 10 Sneaky Myows Maneuvers)

At the same time, Chris runs his very succesful branding agency Engage Brandcraft and is known to the copyright-savvy web community for sharing useful resources like his own General Copyright Agreement or methods to Crystalize a Creative Business.

Last week his agency released an excellent Branding 101 guide and I want to make sure you don’t miss it.

Here it is: Brand Building 101

Enjoy!

We were recently shocked and stunned here at Myows to find our logo, site design etc. sitting snugly within another person’s portfolio of work, where it was being passed off as his own on his website.

Fortunately, the offending site was taken down after we alerted him to the error of his ways. But the case raised some interesting questions about what could be done legally in situations like this where someone claims your work as their own.

One of the legal options available is to claim and enforce your moral rights over your work.

Now for those of you who know your way around the legal system, you will know that morals don’t often come into it. But did you know that as the creator of a design, the writer of an article, the maker of a YouTube video, or the developer of code, you enjoy certain additional rights over and above the normal copyright protection available over your work. Even when you have given your copyright away, you still retain these moral rights over your original work.

These moral rights consist of two separate rights:

a) the right of paternity which allows you to tell the world that you are the author of a work;

and b) the right of integrity which allows you to prevent others from distorting, mutilating or modifying your work in a way that is prejudicial to your honour or reputation (e.g. painting excessive facial hair on the Mona Lisa).

What to do when your Moral Rights are infringed

Let’s use our experience as an example – our work was displayed on someone else’s website under their portfolio of work. They did not have authority to publish our work, but more importantly they claimed that they had created the work themselves. We would have the normal recourse against the offender for the infringement of our copyright; but we could also claim that our right of paternity was infringed because the offender failed to attribute the work to us.

There is a fine distinction here – if the offender had stated on his site that he was not the creator of the design but failed to say that we were, he would not be infringing our right of paternity unless we had previously required that he attribute authorship in the design to us. However, by going further and holding himself out as the creator, he immediately infringed our paternity right.

Let’s take another example – let’s say we had assigned the copyright in our design to another person (person X) and they had then authorised another person (person Y) to make modifications to the design. As the original author of the design, we would not be able to claim copyright protection (we gave it away); but we could still challenge any modifications that were prejudicial to our honour and reputation by enforcing our right of integrity.

Recognised by the Berne Convention, moral rights are separate and distinct from copyright.

However, an infringement of an author’s moral rights can be acted upon in the same way as if there was an infringement of copyright. You would be entitled to claim civil damages and/or injunctive relief, and you could bring criminal charges against the offender.

The offender cannot rely on any of the normal exemptions to copyright infringement, e.g. fair use, as these don’t apply to an infringement of moral rights. However, if you authorised the use of your work in the making of a movie or computer program, you cannot prevent modifications that are absolutely necessary on technical grounds, or for the purpose of commercially exploiting that movie or program.

Unlike copyright, you cannot transfer your moral rights to someone else.

They remain vested in you for your lifetime. You can however waive your moral rights or agree that you won’t enforce them. Although no formalities are required for a waiver of moral rights, it is always a good idea to reduce any waiver to writing.

So go out there and uphold good “morals”!

“It is better to fail in originality than to succeed in imitation” – Herman Melville.

Whether they do it for love or for money, all creatives want their work to be original. Originality is seen as the yardstick of creative skill and talent. But for the purposes of copyright protection, what is the threshold of creativity that makes a work original?

Whether they are contemplating action against an infringer, or their own work is challenged, it is important that creatives understand the concept of originality.

A distinction needs to be drawn between copying, and using existing work to create something new. The former is infringement; the latter is a derivative work.

Originality begins with the choices you make when creating a work. These choices may be limited by the technical standards or best practices of your discipline, or dictated by the use to which your work is to be put (i.e. an iPod needs to play music). But then there are those creative choices you make, those that apply your signature to the work. It is these creative choices that are protected by copyright.

Take a telephone directory – it is made up of information from the public domain and there is very little scope for arranging that information in a creative way. The creative choices that go into it are very limited. Compare this to the creation of a website. A significant amount of creativity goes into selecting the elements and putting them altogether.

Originality standards are not the same in every country. There may also be different standards for different categories of works within a country (e.g. utilitarian or functional works such as computer programs and databases vs creative works).

However, in practice, it is often the case that the end result is the same across jurisdictions even thought different standards have been applied.

It must always be remembered that while creative works will by definition be ‘original’ and covered by copyright, creativity is not required to make a work ‘original.’

Here are a few questions to ask yourself if you ever get into a bun fight over whether your work is original (or you are taking on someone who has copied you):

1. Did you refer to existing work during the creative or development process?

2. How much did that work influence you (be honest with yourself)?

3. What “creative” choices did you make about the work, which were not based on industry techniques, best practices or the functions to be performed by the work?

(The more intellectually creative you are, the more chance you have of the work being original).

4. How much of your own personality come through in the work?

5. Can you identify elements of the work that could only come from you?

(If not, start trying to develop a distinctive stamp you can put on your work)

6. Don’t be guided by the puddle of blood, sweat and tears – copying can also be hard work sometimes.

7. If there was very little scope for you to arranging the different elements of the work because of the nature of your discipline, the choices you made when arranging those elements will be scrutinized more closely.

(So document as far as possible how you went about selecting and/or organizing the elements)

8. Do you need to be factually accurate when creating the work?

(If so, the scope for creativity may diminish)

9. Is the general public going to be interested in the work you have created? Is it different to other similar types of work (e.g. maps, diaries)?

It is not easy to be absolutely novel and unique these days. But the good news is that copyright law doesn’t expect you to be before it protects you.

My name is Victor (UK) and i’ve just signed up for an account at myows.com. However i’ve as a upcoming house musician/producer i’ve got a question which has been bugging me for a while:
If someone approaches me wanting to remix a song of mine, how do i go about this and what role will my copyright play in this matter? Or in a case whereby I would like to remix someone else’s original work what do i do?? If there are cost implications involved, what would i have to pay for?
Please help
Kindest regards
Victor

And here is Steve’s answer:

Hi Victor

Welcome on board to MYOWS and thanks for your question, it’s a good one.

If you want to let someone else remix your music, you would grant them a licence to do that. The type of licence would depend on whether you want to make some money or simply want to share your work. Check out www.creativecommons.com for some licence ideas.

If you want to use someone else’s work, the first thing you need to do is identify exactly who owns the copyright in the song. Remember that sound recording are made up of a number of elements which are protected under copyright law. Therefore, there may be a number of different copyright owners involved in one piece of work.

To make it simpler for you, there are a number of organisations in different countries that can help you find out who the copyright owner is for a particular song or music. In the UK, you could try the Music Publishers Association (MPA) (www.mpaonline.org.uk)

You usually have to pay a royalty to a collecting society when using someone else’s music, unless you can deal with the musician directly. The amount of the royalty will depend on what you want to do with the work.

As an up and coming musician/producer, you definitely want to make sure that your contribution to the remix is acknowledged. You can also stop any remixing that distorts or mutilates the integrity of your work by exercising your moral rights. Likewise, when you are using someone else’s work you should also credit them in your remix.

We hope this gives you something to work with. If you need any more help, let us know.

We asked Victor for his permission to publish both his question and our answer, as we believe it can help a good amount of people from our Copyright-savvy Creative Community. If you also have questions relating to your rights, don’t hesitate to ask them on our forum.

After a little consideration, I’d like to share a clause that we’ve got some great mileage out of at Engage… it reappears quite often in our client contracts. It may be of use to Myows users. It is (drum roll): The General Copyright Agreement. We use it on release forms, SLAs and project contracts amongst other things. It’s the copyright equivalent of Grandma’s allspice. It’s delicious and it goes on everything.

PLEASE NOTE: THIS IS AN EXAMPLE – IT DOES NOT CONSTITUTE ADVICE! IT IS NOT A TEMPLATE FOR GENERAL USE.

This particular piece of legalese was prepared by Engage Brandcraft’s attorney for Engage Brandcraft’s use. I’m sharing it with you as an example but if you’d like to use it, I can’t sue you (I’d be very hard pressed to find a judge that felt that this constituted an Original Work). Just know this: if anyone tries to harm or upset you in any way as a result – this has nothing to do with me!

I specifically like the fact that this is in relatively plain English (if your client doesn’t understand this… RUN). I also like the fact that it covers three important aspects of copyright that are ignored by less organized souls:
- the right to use the work (dependent on payment),
- the right to alter work (moral right)
- and the right of the creator to include the work in her or his portfolio.

Most of these rights stand even in the absence of a clause like this or similar contract, but by asking your client to acknowledge these points, you align your expectations. You also signal that you take your work seriously! You’re a professional.

Here it is (read it out aloud in your head; it’ll make you feel bigger).

——————————–

All materials or property belonging to or commissioned by the CLIENT, as well as work performed, may be retained as security until all just claims against the CLIENT are satisfied.

If you wish to use the design we have created and/or the images within it for another purpose or project, including a reprint or exhibition, you must contact us to arrange the transfer of rights and any additional fees before proceeding. If printing or other implementation is done through your vendors, you agree to provide us with printed samples of each project.

Okay, to be honest, it’s a little frustrating. But then I guess it’s always annoying to be faced with trust barriers when you’ve started a positive initiative and all you want to do is go out there and nail bad guys. Of course, these questions are only natural at the end of the day. So here is our response.

We realise that there will always be skeptics and conspiracy theorists, but as for the rational majority – here’s what we’ve done to ensure that you can trust us with your work:

1. Each file is stored and backed-up on two remote, independently operated and maintained servers on opposite sides of the world. If both these servers are simultaneously and cataclysmically destroyed, the safety of your OWs will cease to be your priority.

2. A unique hash value is generated for each work at the time of upload. This is permanently linked with the file to form your OW. Basically each file is packing its own fingerprint/retinal ID, proving that it is who it claims and that it was born when it was born.

3. All databases (including hash values) are periodically filed (as recorded data) at our lawyer’s offices in a large steel safe that may even survive the cataclysm mentioned in 1 above.

4. All the leading web security standards (including SSL encryption) have been thoroughly and conscientiously applied across our app to ensure safe transfer of data and reliable verification where required. (Gmail and Basecamp only recently switched to this approach, and Facebook or Twitter have yet to follow our lead in terms of site-wide SSL security.)

5 Dave, Max, Steve and I are all really good-natured people with solid middle-class upbringings, decent (not decadent) tertiary education and friendly dispositions.

What else can we do to help you believe we’re on your side?

Plenty. But right now our focus is on getting a great service and product to people that do believe us in light of the above. Time will provide the best evidence of our intentions.

Suffice to say that we’ve gone the extra mile in building a brand that stands for integrity, safety and solidarity amongst the creative community. Ergo: there’d be little point in allowing anything or anyone to jeopardise all that.

As far as l running off into the night with our members’ work is concerned… what would we do with your OWs if we were to steal them? Would we print them all out and fold them into origami paper hats?… perhaps. Would we secretly sell them on to the highest bidder? Now that would be ridiculous.

Stealing our member’s OWs (or allowing them to be stolen) is really not a sustainable business model. If this ever happened, you can bet your cotton socks (it’s an English thing) that somebody would find out and spread the word fast. We are talking about the net after all.

We would prefer to keep our business and personal reputations in tact thank you very much.

Bear in mind that, if we breached fellow-members’ trust, we’d go down in history, not only as evil idiots, but also as irony personified. Myows would be stuffed. What a waste… even if we were the bad guys.

Which. Of course. We’re not.

The question essentially is this: because USCO is available to US users and certain rights are exclusively granted to parties that register their work with this authority, what is the point of using Myows? Here’s my opinion on the matter.

Myows was started as an effective response to the problem of growing copyright infringement globally – especially due to increased internet penetration and the resulting ease with which work can be stolen, copied and sold online.

In most countries, copyright is automatically assumed by the author when an original work is created. When two parties dispute copyright in a particular work, the arbitrator or judge looks at the evidence provided by both and decides accordingly to whom the copyright belongs.

The US is the only country, to my knowledge, that allows for the registration of copyrightable material but this does not require the registration thereof in order to claim copyright in the US – a common misconception.

Parties who have not registered their work with USCO still have the same essential rights as those who do so but with a two key exceptions:

- If your case lands up in a US court, you will be presumed to be the owner of the work if it was registered with USCO and the burden of proof would then rest with the other party to show that the copyright does, in fact, not lie with you.If the other party can prove that they were the original creator, then your rights – even as an USCO registered creator – will fall away, unless you could prove that the other party ceded their rights to you.

- Should they win their case, users of USCO will be able to claim punitive damages in addition to other damages. However, a non-USCO user would still be able to issue an injunction against unauthorized infringement and claim for loss of income if commercial loss can be established.

Bear in mind that these differences only become relevant if a dispute is escalated to full-blown litigation which is both expensive and time consuming and is not really feasible for many creators (especially those who consistently produce larger quantities of work).

USCO registration will likely have no bearing on cases involving cross-border copyright theft where at least one party is not a citizen of (or registered in) the US.

Myows is primarily a management app.

The protection facility is a very important part of the offering presented to the Myows community but it forms part of a wider management function.

Sure, Myows creates valid and valuable evidence for you, but it also stores and arranges your evidence along with the original files (of all kinds). The service goes way beyond registration.

Myows allows you to organize all of your copyrightable material along with associated licenses, releases and cases past and present.

Myows also gives you access to legal templates, provides you with sound legal information and helps you follow the correct procedural steps when dealing with infringements, assisting in ensuring that you are in compliance with the law.

The scope of the app will eventually extend beyond even this (for example: suggesting dispute resolution options and putting you in touch with legal advice in your area). These functions are clearly outside the ambit of USCO, they are also not at odds with USCO’s services.

Myows is free and instant.

Basic USCO registration takes a while to process and costs $35 minimum. You could also end up paying for other sundry items thereafter (Issuance of a receipt for a sec 407 deposit = $30).

If you write 3 blog articles a day or take 50 new pics a month and you want to register them with the government office, it’s going to cost you serious time and money. Myows saves you both and it is easy and enjoyable to use, whilst still creating genuine and useful evidence.

Essentially, USCO and Myows are not mutually exclusive

To be honest, if I were based in the US I would upload all my work to my Myows account. Then, when I created something very unique and valuable with an imminent and high threat of theft, I would also register that work with USCO.

And what would I do with my proof of USCO registration? I’d save it with the corresponding work on Myows of course.

Find out more about USCO at: http://www.copyright.gov/

* Footnote: Myows has been designed, in part, to represent a global copyright savvy community.

It is an app as well as a movement and we need as much support as possible if we are to achieve our goal of empowering creators and reducing the incidence of online copyright. Strength in numbers is also something to think about here if the idea appeals to you too!

In Part 3 of the series on Copyright Basics for Graphic Designers, I will look at some of the main issues that arise when you take your work online and how you can continue to protect your copyright while exploring new ways of sharing your work with a wider audience.

The internet is not public domain

One of the first myths about content on the internet is that it is free for everyone to use, copy and share. This is a dangerous misconception which can lead to some messy disputes.

Take a recent example of a photographer who found that a mainstream UK newspaper had used one of his photos on the popular photo-sharing website, Flickr, without his permission. Although the photographer had clearly posted a notice on his Flickr page that “all rights were reserved”; the newspaper still assumed that because Flickr was a free-to-use website, it hosted public domain content which was free for anyone to use.

Although the dispute was ultimately resolved with an apology and payment of the necessary usage fee, it highlights that even a national newspaper that works with copyright law everyday was misinformed about what they could or could not do with online content.

Despite the photographer’s copyright notice being overlooked in this case, placing clear notification next to your work and/or on every webpage that it appears on is still recommended good practice. Doing so prevents others from arguing that they didn’t know the material was copyrighted (like the newspaper in the example above).

It is also important that you assert your copyright clearly in the terms and conditions on your website, stating what can and cannot be done with your content. Include a non-waiver clause too which basically states that nothing you do should be construed as a waiver of your copyright.

Search using thumbnails

There have been a number of cases since the advent of the internet on whether using thumbnail versions of protected images without permission for web search purposes constitutes copyright infringement.

If you remember from Part 1 that copyright is only infringed when a substantial portion of a work has been copied, the question is then whether a thumbnail is regarded as a substantial copy of the original work? In the case of Perfect 10 vs Google, the search giant was providing thumbnail images of Perfect 10’s models amongst its image search results. Perfect 10 claimed that its copyright in the images was being infringed.

Perfect 10’s claim was upheld in the lower courts but rejected on appeal. The appeal court stated that a thumbnail on its own was not a substantial copy. However, the court did add that if the thumbnail linked to a full-size copy of the same image, there would be copyright infringement.

Creative Commons licensing

Copyright holders have traditionally shared their work with others in very restrictive ways, i.e. either by assignment or proprietary licensing (see Part 2). However, with the digital revolution and, in particular, the explosion of the social media phenomenon, content users want more freedom to adapt and share content with each other.

If you want others to freely share your work online, whether as a form of marketing or simply because you are being magnanimous, there are a number of new, more “open” licensing models you can use to distribute your work. The best known and most widely used of these new licenses is the Creative Commons licenses.

Again, many people think that work published under a Creative Commons license is essentially a waiver of copyright. This is incorrect. The licensor still asserts copyright over the licensed work, but grants further freedoms to others to share, adapt and redistribute the work under the license.

The distinction can be drawn between licensed content and content which is or has been placed in the public domain. Public domain content is available to everyone and no copyright vests in the work. This is the mistake that was made by the newspaper in the example above.

Creative Commons (CC) has six main license types, each type with its own level of restrictiveness. The restrictions (or lack thereof) are based on 4 concepts: attribution (crediting the original creator); share-alike (sharing derivative works under identical licence terms); non-commercial purposes (allow rights but not to make money) and no-derivative works (redistribute and use actual work but don’t make changes).

The six main license types are:

1. Attribution

This license lets others basically do what they want with your work (including make money from it): provided they credit you for the original work in a way that suits you.

2. Attribution Share-Alike

This license again grants all the same rights (including commercial use): provided the user credits you and licences any new works under the identical terms.

3. Attribution No Derivatives

This license allows your work to be redistributed (including commercially), but it cannot be changed and it must be credited to you.

4. Attribution Non-Commercial

This license lets others do what they want with your work provided it is not for commercial purposes and you are properly credited.

5. Attribution Non-Commercial Share Alike

This license grants all rights to others, provided they enjoy them for non-commercial purposes only, they licence any derivative works under identical terms, and you are properly credited for the original work.

6. Attribution Non-Commercial No Derivatives

This license only allows others to download your works and share them, provided proper credit is given to you. The original work cannot be changed or used commercially.

Lauded for their user friendliness and the welcome absence of legalese, Creative Commons licenses are very en vogue at the moment – used in over 180 million web pages on the internet. However designers who want to try them out should read the actual license terms carefully to make sure they choose the one best suited for them.

Creative Commons has done a lot of work to make sure that their licenses can be adapted for most jurisdictions. Although there have only been a small number of cases around the world involving these licenses, there should be no problem with enforcing the license terms as you would any other contract.

There is no doubt that the internet and other digital platforms offer new and exciting ways to get your work out there. But remember to look before you leap!

In Part 1 of our series of articles on copyright for graphic designers, I introduced you to the basics of copyright – what it is, how it can be infringed and how to protect it.

In Part 2, I will look at the traditional ways you can make money from your creativity.

Copyright is like a picnic basket with different goodies inside. You may not want everyone to share everything in your basket, and instead you want to limit what they can and cannot do with your copyright. For example: you may allow one person to publish your work as is, while allowing another to adapt it and publish a new version.

You can also grant the same rights to people in different countries or geographical areas where you have copyright or give all of your rights away to one person who enjoys your copyright throughout the world.

Finally, you can limit the time period in which people can enjoy your rights. Think of the software you use and the annual subscription fees you pay to renew your licence rights.

There are 2 recognised legal ways you can grant rights in your work to others:

1.    By assignment; or

2.    By license.

Assignment

Assignments are basically like the sale of your copyright to someone else. For as long as the person you assigned your rights to (the assignee) enjoys your rights, you cannot exercise them. The assignee is the new holder of the copyright and they, in turn, can assign or licence the rights onto someone else. If someone unlawfully infringes the copyright, it is the assignee who must enforce it.

Assignments can be limited to a particular country. For example, you can assign your copyright in the UK, but still enjoy it in the US. Assignments can also be limited to a particular period of time. Once the time period ends, the copyright reverts back to you as the original holder.

A valid assignment can only be carried out if there is an underlying agreement to assign your copyright and the assignment itself is reduced to writing and signed by you. It is always a good idea to draw up a contract setting out exactly what is being assigned and specifying if there are any limitations.

You can assign your future copyright in a work still to be designed. However the assignment will only be effective once the work has been born and is vested with copyright.

If you are assigning your copyright, you will usually be able to charge a higher price because you are limiting your ability to earn money from it in other ways.

Licensing

A license is basically a promise from you, the copyright holder, not to sue the person holding the license (the licensee) when they exercise some or all of your copyright. Unlike with an assignment, you remain the owner and merely allow the licensee to exercise the right.

Copyright licensing is a bit like the design process itself – there are an infinite number of licence variations limited only by the creativity of the drafter.

Licenses can be exclusive, i.e. no-one but the licensee is allowed to enjoy the same rights for the period of the license; or non-exclusive where the same rights can be granted to various people.

Non-exclusive licenses don’t have to be in writing, and can be given verbally or even by conduct (E.g. if someone is using your work without your permission but you don’t object). Unless the license is specifically agreed to be non-revocable, you can take it away at any time. However if the terms of the license are that it is perpetual, then it cannot be terminated unless further agreement is reached or the licensee commits a breach of the license.

An exclusive license must be in writing and signed by you. If an exclusive license is not reduced to writing and signed, it becomes a non-exclusive license. The exclusive licensee has the right to take action against third parties for copyright infringement in his or her own name. Their right of action exists concurrently with your own right of action.

In Part 3 we will look at new forms of licensing which have been introduced to accommodate new ways of sharing content on the internet and across other digital platforms.

If you have any queries, leave a comment, contact Steve (steveatniccifergusondotcodotza) or post your question on the Myows Forums.