You Made a Collage, But That Doesn't Give You Rights In the Underlying Work

You Made a Collage, But That Doesn't Give You Rights In the Underlying Work

The longer I practice law, the more I recognize certain “seasons” in my work; sometimes I’ll have a period where all my clients are filmmakers. Perhaps six months will go by where all my work revolves around trademarks in some way. Maybe I’ll have ten people in a row ask me about indemnity clauses. Lately many of my clients or prospective clients are visual or graphic artists producing collages. And they all want to know the same thing: can they use the work of others in their collages?

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The Benefits of Copyright Registration

The Benefits of Copyright Registration

Oftentimes, I get this question from current or prospective clients: “how do I copyright my work?” I usually tell them, “you don’t have to because you (most likely) already own it. Copyright isn’t an act one engages in, it’s a suite of rights, granted under the U.S. Copyright Act, that attached from the moment your work is ‘fixed in a tangible medium of expression.’” That is, the moment your work is recorded somehow - in writing, on paper, on a computer, in audio, video, etc, etc. Among the rights granted to you under copyright law: the right to own, use, exploit, and transfer ownership to the work. Other than creating it, you do not need to engage in any further actions to own it.

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Repost: You Can’t Copyright Style

Shortly after Star Wars: The Force Awakens came out, something happened that no one could have possibly predicted: people started making fan art. Shocking I know, but in a world where Donald Trump is the leading Republican candidate for President, I’m not sure anything’s a surprise anymore. Anyway, among those artists was Disney and Marvel illustrator Brian Kesinger. But Kesinger wasn’t interested in your run of the mill fan art. He wanted to do something special. The result of his labor: a series of adorable illustrations of Kylo Ren, Han Solo, Leia, and Darth Vader from The Force Awakens done in Bill Watterson’s inimitable style. Kesinger not only nailed the famed Calvin and Hobbes look, he also got Watterson’s voice.

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On Whether You Can Use Someone Else's Copyrighted Work As Reference Material For Your Own

On Whether You Can Use Someone Else's Copyrighted Work As Reference Material For Your Own

"As part of my (illustration) process, I source and screenshot or drag images of people, places, and things from Google (usually stock photos) which I then combine and trace to create my illustrations. It would be hard for any of these stock photos to be identified outright in my work, as they are mainly used as the skeleton for postures and environments in my drawings. They are transformed by my invention of things like clothes and other details, and by my linework 'style.' What do you think of this? Am I doing anything legally risky?"

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You Made a Collage, But That Doesn't Give You Rights In the Underlying Work

You Made a Collage, But That Doesn't Give You Rights In the Underlying Work

The longer I practice law, the more I recognize certain “seasons” in my work; sometimes I’ll have a period where all my clients are filmmakers. Perhaps six months will go by where all my work revolves around trademarks in some way. Maybe I’ll have ten people in a row ask me about indemnity clauses. Lately I’ve been in a season where clients are visual or graphic artists producing collages. And they all want to know the same thing: can they use the work of others in their collages?

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Are You an Employee or an Independent Contractor? The Answer May Surprise You

Are You an Employee or an Independent Contractor? The Answer May Surprise You

Do you know if you’re an employee or an independent contractor? It seems like something you should automatically know when you’re hired, but the question comes up more often than you’d think. The confusion often arises when the terms of hire or the expectations from the employer are ambiguous or *shudder* not written down. And there are real consequences to not knowing whether you’re an employee or a contractor: it can affect whether you are eligible for employee-sponsored insurance, whether your employment is temporary, and for artists, whether or not you own rights in the work you’re hired to create.

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The Work For Hire Doctrine - A Primer For Freelancers

I've never actually explained the Work For Hire doctrine in any meaningful way. I've only tiptoed around it, and that's just ridiculous when you consider the fact that artists generally aren't independently wealthy and need to work for a living. Since most artists make their living by creating their work on someone else's dime, that means they're relying on the Work For Hire doctrine even when they don't realize it.

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Ask Greg: What's the Difference Between Selling and Licensing Your Work?

Ask Greg: What's the Difference Between Selling and Licensing Your Work?

Recently I held a webinar on contracts during which I made passing reference to the difference between selling and licensing one's work. Afterwards, one of the attendees emailed me asking "so what actually IS the difference between selling your work and licensing it?" It's one of those questions that on the surface feels like it should have an obvious answer but the more I thought about it, the more I realized it's kind of like home equity or taxes (or really anything to do with money)... it's something that as an adult you vaguely understand, but you're honestly not sure and you've gone too long to admit it.

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Repost: Why J.K. Rowling Should Walk Away From Harry Potter Forever

[Author’s Note, November 26, 2018] Fantastic Beasts: The Crimes of Grindelwald has been out for a few weeks now and has been cleaning up at the box office. Too bad the reviews are trashing the movie. It got me thinking about this old piece I wrote three years ago when the first Fantastic Beasts movie had been announced. I’m republishing it here for your enjoyment.

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The other day, J.K. Rowling gave an interview with Matt Lauer about her charity Lumos and mentioned she probably wouldn't write another story about Harry and the gang, although she wouldn't foreclose the opportunity altogether. I don't know whether Rowling will ever return to Harry Potter but I do know that she shouldn't. In fact, I think she should relinquish all rights to the Potterverse before she messes it all up.

Okay what? Messes it up? J.K. Rowling is a goddamn international treasure and I should be strung up by the neck for thinking such heretical thoughts, right? Well maybe, but first let me say that I have nothing but admiration for Rowling's skill and artistry. The books and films stand as towering achievements in their respective fields and the world is undoubtedly a better place with Harry Potter than it would be without. And that's exactly the problem.

We revere authors and creators of valuable intellectual property. We assume they know what's best when it comes to their work. And sometimes that's true! George R.R. Martin certainly believes it. The general sentiment is that his voice is the only one worthy of steering the Game of Thrones ship. The same probably would have been said about J.R.R. Tolkien and Sir Arthur Conan Doyle. But as fans, I think we've been burned by too many Special Editions/ Director's Cuts/ sequels/ prequels/ sidequels/ reboots/ and preboots to feel anything but trepidation when a creator remains involved for too long with their own work. I get it. It's your baby, and it's hard to walk away from something that you poured your heart and soul into. But I'm a firm believer in the Death of the Author, and I've stated on this blog several times that when a work takes on a certain level of cultural importance, it transcends the law and becomes the property of society at large, not just the creator. That was the original intention when copyright protections were baked into the Constitution. Remember too that history is replete with authors who aren't the best judges of their own work; George Lucas is a prime example of how far from grace one can fall simply by sticking around for too long. And I want Rowling to avoid that fate.

All evidence indicates that she's not stepping away. She's released several short stories and updates on the lives of the main Potterverse characters and is even writing a trilogy of screenplays for Warner Bros featuring the tertiary Potterverse character Newt Scamander (to be played by Oscar winner Eddie Redmayne) in Fantastic Beasts and Where To Find Them. There is limitless money to be made from the Potterverse, so I think it's just the beginning of a huge tidal wave of stuff with J.K. Rowling at the helm.

Obviously the law allows Rowling to do whatever she wants. Copyright law, particularly in the U.S., isn't equipped to consider the cultural importance of works like Star Wars or Harry Potter. The result is that all art, regardless of quality, is treated the same, which can be a good thing because it prevents systemic discrimination. The downside to that approach is that financial reward becomes the only measure of success. And that just makes it harder to let go. It's easy to convince yourself that you and only you are capable of maintaining the integrity of the work over the long haul. It becomes even easier if there's a lot of money to be made by doing it. The law incentivizes you to stay. And because copyright terms last for so long (life of the author plus 70 years), Rowling's great great grandchildren will be able to profit from her work.  And I think it's a shame to keep something like that so closed-source.

To my eyes, the seams are already showing. Three years ago, Rowling publicly stated that she wished she had killed Ron out of spite and that Hermione really should've ended up with Harry. The fact that she admitted this publicly is problematic enough - it shows a tone-deafness to the effect her words have on the fan-base (which is surprising considering her generosity to her fans). It also suggests that she might not have a full grasp of what makes the story work (i.e. that Harry's arc isn't about romance). 

So what should Rowling do? Well, I can't believe I'm saying this, but I think she should follow in George Lucas' footsteps. During an interview in January for his bizarre animated film Strange Magic, Lucas mentioned that he originally envisioned writing and directing Episode VII himself as the first of a new trilogy of Star Wars films. Ultimately, he decided to spend that time with his family instead, so he cut the cord and sold Lucasfilm to Disney. It was a remarkable bout of self-awareness from a man who has typified anything but for so long. When asked if he was involved with the new film, Lucas said that he knew nothing about the story, had seen no footage, and was looking forward to watching it in a theater... as a fan. When you're the author of something popular, knowing when to walk away is a valuable trait, and even though he took some hard knocks getting there, Lucas finally learned it. 

Rowling should walk away from Harry Potter the same way Lucas walked away from Star Wars. She can retain the copyrights to the main story if she wants, but license or sell everything else to Warner Bros for a whole new universe of books, films, and TV shows (she would make a small fortune either way). She can even stay on as a figurehead or elder stateswoman who gets approval over story and design decisions. After all, who wouldn't want to see a series set at an American wizarding school? Or a Quidditch version of Miracle on Ice? Or a trilogy of films about the adventures of the young Dumbledore brothers? 

This would give Rowling the clarity to focus her busy schedule on her Cormoran Strike series (which is being adapted into a BBC television series... my wife is so excited) not to mention her charity. Lucas and Ridley Scott (Prometheus, yecchh.) are poster boys for what happens when you overstay your welcome. It's never a bad idea to go out while you're still on top. 

Cinema Law: What You Should Know About Using Other Peoples’ Quotes in Your Film

Cinema Law: What You Should Know About Using Other Peoples’ Quotes in Your Film

Lawyers tend to be conservative creatures. We don’t like loose ends or vagueness, so we will always tell you to get permission, even if using the quote wouldn’t necessarily open you to liability. After all, why run the risk of guessing and then getting sued when you can simply ask and get a straightforward answer? It’s always easier to ask permission than to beg forgiveness later.

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