The Work For Hire Doctrine - A Primer For Freelancers

It strikes me that in the eight months I've been curating this blog, 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.

I bring this up because last Thursday I hosted an alumni-only webinar for my alma mater on important legal topics for artists and artrepreneuers and I made the Work For Hire doctrine a prominent part of that presentation.  Based on some questions I got during the lecture, I decided that now was the time to discuss Work For Hire and clear up some important misconceptions about it (especially as it pertains to freelancers) that seem to throw people for a loop.  So without further ado, here's my brief primer on Work For Hire.  Buckle up, it's about to get informative!

What Is Work For Hire?

The Work For Hire doctrine is a very specific legal principle that arises under U.S. Copyright Law.  The basic premise is that in certain situations, an employer will automatically own the copyright to work you do for them as a matter of right.  But the manner in which an employer can assert that right depends heavily on whether you're hired as an employee or an independent contractor (or freelancer, to use the non-legalese equivalent).

The Employee Work For Hire

If you're hired as an employee, the work you create for your employer doesn't belong to you, it automatically belongs to the employer.  No ifs ands or butts. In employment situations, the ownership over a copyright to a piece of art is no longer determined by the artist's handiwork; it's determined by the motive and desire of the employer.  How will you know if you're in an employment situation?  Look for the traditional trappings of employment, like salary, benefits, co-workers, office, boss, limited control over your work, etc.  If you find yourself in this situation, then unfortunately, the only way you can retain a copyright to work you've created for the employer is if the employer gives it to you in writing.

Here's an example of how that plays out: if a company hires you to design a logo and website for them, but you're paid a salary, you work out of their office, and your employment is indefinite (as opposed to job-specific), that probably means you're an employee.  You won't have any rights of ownership over the work except the right to display that work in a portfolio.

...But you and I both know that most artists don't work as employees; more often than not they work as freelancers.  And when you're hired as a freelancer, the rules change dramatically.

The Independent Contractor/ Freelancer Work For Hire

If you're hired as an independent contractor or freelancer (you should look for factors like greater control over the work, using your own equipment, working on your own time, short employment periods, etc.), the employer will own the copyright to your work as a matter of right ONLY if all of these requirements are met:

1. The work is custom-made/ commissioned

2. Both parties agree in writing that it's a Work For Hire

3. The work falls into one of these nine categories: (A) a contribution to a collective work, (B) a part of a motion picture or other audiovisual work, (C) a translation, (D) a supplementary work, (E) a compilation, (F) an instructional text, (G) a test, (H) answer material for a test, or (I) an atlas.

So if you're a freelancer, this means that you will own the copyright if any one of these three requirements isn't met!!  Let me repeat that because it's super important... your work must meet all of these requirements to be a Work For Hire; if just one of these requirements isn't met, it isn't a Work For Hire and the employer doesn't get the copyright.  One of the biggest misconceptions I see with freelancers is that they usually assume once they complete the work, they no longer have any ownership rights over that work and they walk away, not realizing that they still own the copyright.

Let's return to the website example.  You're hired to design a logo and website for a company, but you do the work on your own computer, on your own time, and you send the company invoices for your work.  The work is obviously custom-made and let's even say that you and the employer both agree in writing that it's a Work For Hire.  Well, it isn't, because unless the websites constitutes a collective work, web and logo design aren't any of the previously mentioned nine categories.  That means it's not a Work For Hire and you retain the copyright to your work.

On the other hand, if you were hired as a cinematographer on a film, then as long as you and the employer agreed in writing that it's a Work For Hire, then the copyright WOULD be taken by the employer, since films are one of the nine categories considered under copyright law. If you're a film producer and you're hiring above and below the line talent, it's a good practice to put in writing that the work these independent contractors do are Works For Hire because you don't want to get sued for copyright infringement.  Remember a few months ago that anti-Islam film that caused all those riots in the Middle East, "The Innocence of Muslims"?  Well one of the actresses, Cindy Lee Garcia, sued the film's producer Nakoula Basseley Nakoula for copyright infringement.  As it turns out, even though their employer/independent contractor relationship met most of the requirements (custom work, motion picture), there was never a written agreement between the two that it was a Work For Hire.  Unfortunately for Nakoula, he has bigger problems than a copyright infringement lawsuit (for example, the jihad against him by radical Muslims for his film's denigration of the Prophet).

Of course, even if your employer has no right to the copyright, you can always convey the copyright (through sale or gift) to the employer if you choose to; the employer only has a right to it in the circumstances I mentioned above.

A Bundle of Sticks

Let's say you're a freelancer and you retain the copyright to the work you did for someone, that doesn't mean you can do whatever you want with it.  After all, someone paid you for that work and they have an expectation that no one will try to profit off of it... even the artist.  It's a reasonable assumption.  When you do work for someone, you can't just treat it like it's yours, even if it is.  That's because ownership isn't the only right that accompanies a copyright.  There are several other rights (such as the right to display, the right to make copies, the right to make derivative works, among others) that go with a copyright as well.  We copyright attorneys refer to this as the "bundle of sticks" and ownership is only one.  When you're paid to do a work of art at someone's request, you end up giving up a lot of those rights, even if you retain ownership.  If you were to exploit the work as if you had complete dominion over it, you could actually end up facing a variety of copyright or trademark infringement issues over exploiting your own work, and that's a pickle you don't want to be in.

So now you may ask "Greg, what's the point of owning a copyright to the work if I can't exploit it?"  Well, chiefly it's because you may want to limit how the employer uses and profits off your work.  Since you both possess some of the rights to the work and neither of you possess all of the rights, both parties are limited in their abilities to exploit that work.

How To Move Forward

So you own the work you did for someone else but now you can't really do much with it, so what do you do?  Maybe it's better to set up some sort of licensing agreement with the employer that's renegotiable at specified intervals.  Maybe it's better to convey the copyright outright and then walk away from the work.  It really depends on the situation, the client, and the potential for profitability of the work you do (for example, if you design a logo for a company and the company becomes famous, the potential for financial exploitation is probably much greater than if you do a mural for a client's building).  As far as I'm concerned, one thing is absolutely clear: if you're a freelancer, you need to discuss what to do with that copyright in every contract you sign with a client/employer.  After all, there's no reason you both can't continue to profit off the work you were hired to do.

And if you're an employee... well just take solace in the fact that you have a job.

How American Copyright Law Made Kim Jong-un Look Like A Fool: A Beginner's Guide to the DMCA

So for the second time in 63 years, we're being pushed to the brink of war with North Korea.  Kim Jong-un, the young bellicose ruler, has been making provocative statements for past few weeks and has aimed his ballistic missiles at U.S. bases in South Korea and Guam.  To make matters worse, because of his youth and untried-ness on the world stage, he's been harder to read than his father and grandfather, making him much less predictable that either of his forebears.  I don't wish to downplay the peril of the situation and I think the Obama administration should be taking all appropriate steps to ensure the safety of the American people, as well as America's allies in Japan and South Korea.  That said, I find it hard to take their threats seriously when they can be made to look so foolish because of American copyright law.

Let me explain. Back in February, the North Korean military released a propaganda video on YouTube that quickly went viral.  The video, scored by a bizarre instrumental version of Michael Jackson's "We Are The World," showed footage of Korean missiles reducing New York City to a flaming husk of rubble.  Unfortunately for Mr. Kim, that footage was taken directly from Activision's hit video game, Call of Duty: Modern Warfare 3.  And since the North Korean military failed to get permission to use that footage, Activision issued a DMCA takedown notice to YouTube.  YouTube complied with the takedown notices and removed the video from their site.  Now when you Google that video, you'll see the image I've posted above.

So how did Activision rout the mighty DPRK?  Well, as I've discussed again and again on this blog, you can't just use someone's copyright without their permission, even if you're a rogue nuclear state who won't submit to U.N. treaties.  That's infringement.  And when you post someone else's copyright online, the DMCA (short for Digital Millennium Copyright Act), gives you the ability to bypass the infringing party and go straight to their Internet Service Provider (ISP).  One of the most common provisions of the DMCA - and the one that's applicable to most artists - is the takedown provision. It's basically a cease and desist letter to the infringer's ISP which states, in effect, that the infringer has used your copyright without permission and the ISP must remove the copyrighted material immediately.  This is something any artist can do... you just include the following in your letter:

1. Your signature
2. Identification of your work that was infringed
3. Identification of the material that infringed your work and that you wish to have taken down, and enough information to allow the ISP to locate the material
4. Your contact information
5. A statement that you have a “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”
6. A statement that “the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

There's no other work required, no fee, no central clearinghouse.  Most ISPs, like YouTube, would rather just take down the offending work than fight you in potential litigation.  That's one of the benefits of the DMCA takedown provision - it's quick and painless and it almost always works. Another benefit of this provision is that you can fight back against infringers without paying a dime in lawyer's fees or litigation costs.

But there are downsides too.  For example: it requires perpetual vigilance.  In this case, Activision went right after YouTube, which took down the video immediately.  Yet the video is still present on the web and can only be taken down if Activision sends whoever is hosting the video a takedown notice.    To wit: Liveleak was able to catch the video before it went down; you can watch it here if you want.  It's truly ludicrous and hilarious.  This is one reason why the DMCA (signed into law in 1998) is simultaneously despised and beloved.  When it works, it really works.  But when it fails, it's a giant clusterfuck.  As with most of this country's intellectual property laws, I'm of two minds on the DMCA.  I'm a big fan when it helps the small and struggling artist, but I'm less forgiving when the law can be used by giant corporations to abuse copyright and bully individual artists.  And Lordy Lordy Lordy does the DMCA get abused by corporate copyright holders.

Last week, Gizmodo published this piece discussing how large corporations use the DMCA to strong-arm researchers into censoring their work in order to prevent embarrassing revelations related to their copyrights.  And who could forget NBC sending Brian Kamerer a DMCA takedown notice for HIS OWN COPYRIGHTED VIDEO after it was featured on The Tonight Show without his permission?  And my personal favorite, the RIAA (Recording Industry Association of America), complaining that Google (YouTube's parent company) wasn't taking the problem seriously, even after Google removed 1.2 millions of copyrighted links in one month after receiving the RIAA's DMCA takedown notices.

One of the problems, of course, is that because issuing a takedown notice is free of charge, the only hinderance is the cost of paper and printer ink.  Corporations can fire off reams of takedown notices without batting an eye.  And while it's certainly possible to fight the takedown notice and have your work reinstated online, well that requires fighting it out through litigation, another cost that a corporation can absorb much more easily than an individual artist.

I don't have an answer on how to fix this, but I do know that there needs to be a way to disincentivize the corporations from issuing takedown notices en masse under the DMCA.  One possible way is to include the infringer in the process instead of going directly to the ISP.  Maybe create a department within the Copyright Office that would handle the takedown notices or attach a fee to it.  I'm just spit-balling here.  I'm perfectly willing to concede that these could be bad ideas, but I do think we need to start somewhere.

Nevertheless, I don't think the DMCA should be killed wholesale, precisely because of the boon it provides to the individual artist who wants nothing more than to protect his or her work.  And if North Korea wants to reissue their propaganda video without using someone else's copyrighted video, I will stand up for their right to do that.  Although somehow I think they have bigger fish to fry at the moment.

Sherlock Holmes and the Case of Copyright Duration

Is Sherlock Holmes in the public domain?  Holmes scholar and lawyer Leslie S. Klinger believes so, and he is suing the Conan Doyle estate to prove just that.

It all started, as these things do, with money.  You see, a few years ago Klinger published a new Holmes novel and, like many who wished to capitalize on the popularity of Sherlock (Guy Ritchie and Steven Moffat in particular), he paid a hefty licensing fee to the Conan Doyle estate for the privilege.

Recently, Klinger decided to have another go at Sherlock; in particular, he wanted to publish a collection of short stories. Once again, the Conan Doyle estate demanded a payout.  Much like the Tolkien estate, the Conan Doyles are renowned to be fiercely protective of their copyright and they doggedly pursue anyone whom they feel infringes it.  This time, however, Klinger decided to sue the estate as a preemptive measure, claiming that Holmes and his entire canon (supporting character like Watson, Moriarty, Mrs. Hudson, the house at 221B Baker St, character traits like Holmes' deductive reasoning and friendship with Watson, etc.) were in the public domain and thus, he didn't have to pay them a licensing fee.

This is a pretty serious move and in all likelihood it has legal support.  That's because in the United States all works published before 1922 are automatically in the public domain and are thus available for anyone to profit from. [Author's note: aside from pre-1922 works, any work whose copyright expires will move into the public domain.]  Sherlock Holmes made his first appearance in 1887's A Study in Scarlet, and nearly his entire world found its way into print before 1922.  By that logic, it's hard to see how the character won't be found to be in the public domain, and if a judge does find for Klinger, that's going to have major repercussions for the character.

In contrast, the estate argues that because Sir Arthur was still publishing Holmes stories as late as 1927, the character and his entire canon don't fall into the public domain. That's where the wrinkle in this case appears.  Apparently, one of the authors whose short story Klinger wants to publish used a Holmes character that didn't appear in a published work until 1924. The case is really interesting and you can read all about it here.

I brought up this issue because of a quote at the end of the article.  When interviewed about the Klinger v. Conan Doyle case, New York based entertainment lawyer John J. Tormey III said that, "Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly."  Amen brother!  On at least two occasions (here and here), I've discussed how the original purpose behind copyright protection in the U.S. wasn't to grant the author everlasting control at the expense of all others, but to foster innovation for the betterment of society.  Our creative landscape is littered with copyright owners (some individuals and families, but mostly corporations), holding their copyrights in an iron death grip, suing the crap out of anyone large or small (usually small), in order to prevent them profiting from that copyright.

That's why I think we need a drastic overhaul when it comes to duration of copyright - in modern political parlance, I would say that I've "evolved" on the matter... which really means I was never a fan of the current duration allowing a copyright to last for the life of the author, plus 70 years (and going up to 95 years for corporate copyright holders), but I just never felt comfortable saying it aloud until now.  Forgive my lack of lawyerly eloquence, but life plus 70 is just too damn long.  Look, I get that if you create something that's profitable, you want to be able to control it, make your living off of it, and provide for you family.  That's a natural instinct and a praise-worthy one.  Piracy - the use of your work without your permission - should be dissuaded and punished where appropriate.

The problem with the current durational scheme is that it results in less innovation and artistic expression and more lawsuits.  Under the current law, the author's estate can use and exploit the author's original work for several generations after he dies. If you can stay rich off of your grandpa's work, what incentivizes you to create your own work of artistic expression...to add something to society?  Even worse, many works of artistic expression end up being purchased by large corporations who use their considerable resources to suppress smaller artists who wish to use those copyrights as points of inspiration for their own work.  [Corporate bullying of individual artists is one of my bugaboos.]

That's why I propose the following four-tiered amendment:

1. A copyright will last for the life of the author and no longer.  Upon the author's death, the copyright will move into the public domain.
2. If the author sells the copyright to another party (a corporation, say), the party will have 15 years to use the copyright.  If the party does not use the copyright in 15 years, the copyright will revert in full back to the author.  If the author dies before the copyright can revert back to him, the copyright will expire and the work will move into the public domain.
3. if the author sells the copyright to a non-corporate buyer, and the buyer uses the copyright within the 15 year timeframe, the copyright will last for the life of the buyer.  Upon the buyer's death, the copyright will move into the public domain.
4. If the author sells the copyright to a corporate buyer and the corporation uses the copyright with the 15 year timeframe, the copyright will last for 70 years, measured from the original sale of the copyright.  At the end of the 70 year period, the copyright will move into the public domain.

I know, this makes me look like an anti-free market socialist.  In fact, I'm willing to bet within two days of publishing this post, I'll get some pushback on the feasibility of this system or the logic behind it.  I don't care though. The truth is, limiting copyright ownership is the best way to spur innovation and growth, which is what our founding fathers envisioned.  A system like this will help limit perpetual copyright monopolies and inspire copyright holders to be pushing boundaries.  Hell, even The Economist agrees that copyright durations should be shorter, so I can't be totally out of my mind.

Sherlock Holmes is probably in the public domain already, but if he isn't, he should be.  Arthur Conan Doyle created him over 120 years ago and his descendants have profited amply from his popularity.  Now it's time for Conan Doyle's great-grand kids to go out there and make their own mark on society and let the world have Sherlock.

Saying "No": A Lesson In Controlling Your Business

A coworker heard about my background in TV production and asked for my help in shooting a documentary about a social justice issue she was passionate about.  Since we both work full-time, she wanted to film on nights and weekends.  I declined politely, saying [truthfully] "I don't do that kind of work anymore."  I'd long since sold off all my production equipment and I've turned down every producing job I've been offered since 2009.  Undeterred, she continued to sell me on the project and when she was done, she said what they always say: "I can't afford to pay you, but you'll get lots of great experience."  This was my response:

"I don't need experience.  I need money."

I get asked to help out on video projects a lot... at least once a month and sometimes weekly.  I say no to all of them.  That's because most of the time, people don't realize what kind of time and effort these projects require, and therefore, what kind of commitment they're asking of me.  The few who ARE aware will offer me "experience" in the hopes that it will be enough to sway me.  It never is. I don't produce anymore, but if you're going to convince me to lend my considerable production expertise to your video project, I want - nay, DEMAND - to be paid for it.  I'm not shy about it and I feel no shame or embarrassment by telling someone that without $$$ they'll have to look for someone more altruistic.

I've written about doing unpaid work in the past so I won't go into the pros and cons again here.  Instead, I'm going to talk about the power of learning to say "No" to situations that don't propel your art and business forward. It's such an important thing for young artists to know, yet so hard to put into practice.

I don't turn down requests to work on unpaid video projects out of greed or selfishness.  I do it because I learned from personal experience that it did actual harm to my business. When I was first breaking into the entertainment industry I took tons of unpaid work because I was too afraid to turn down any job, regardless of compensation, for fear of doing irreparable harm to my reputation.  "Don't hire Greg.  He's not a team player... he [gasp] wants to be paid."   At one point, I had three simultaneous unpaid internships, and various unpaid production assistant gigs.  I had more jobs than I knew what to do with, but my parents had to pay my rent because my income was $0.  I wasn't in control of my sh*t.

In hindsight, I realize that I took all that unpaid work because I didn't understand the value I brought to the job.  I didn't believe that I could say "No" and get away with it.  One day, I made a conscious decision to take control.  I would refuse all unpaid job offers and only accept paying gigs.  That was a good decision - a difficult decision because it resulted in a nine month work drought, but I'm glad I made it.  Eventually, the paying work came and it paid a living wage.

I understand how tough it can be to turn down a seemingly perfectly good job, especially for young up and coming artrepreneurs.  Figuring out what situations are good for your business or bad for your business is a calculus that's different for everyone.  And it can only be done through personal research and soul-searching.  It took me years to discover that working for free was harming my business instead of helping.  So instead of just yelling at you to say "No" to bad situations, I'll give you two real life examples (three if you count mine above) that will hopefully inspire you to be vigilant about what kinds of work situations are right for you.

1. An illustrator friend of mine was recently working for a client.  The client became difficult to work with and made numerous demanding requests.  My friend decided to inform the client that she would no longer be able to work under these conditions.  She further told the client that if they no longer appreciated her work, they were perfectly in their rights to find another illustrator.  After several conversations, the client decided to discontinue the relationship.  When I asked my friend if she was angry, she said, "No.  That relationship wasn't working for me and it wasn't working for them.  Neither of us were happy.  I had to walk away."
2. A painter friend of mine was selling his paintings.  All the paintings were at a fixed price and he refused to negotiate over them.  When I asked him why he didn't negotiate, he said, "I don't like negotiating so there's no point wasting my time doing it.  The paintings cost what they're worth."

Both of these people are professional artists who make a living by making art.  They each figured out what situations worked for them and what didn't.  They each learned how to say "No." And once they learned to say "No," they didn't run from it or act embarrassed by it.  They embraced it.  And once you learn how to make that choice, your business will be able to take off.

Topless Celebrity Photos! Or How To Get Sued Like A Paparazzo

A few weeks ago, I wrote this piece about how artists own the copyright to their work even after they've sold the physical manifestation of that work (i.e. retaining the copyright over a painting even after selling the physical painting to a buyer).  The post generated a lot of interest and in the ensuing discussion, I got several variants of this question:

"If I take a topless photo of [Hot Celebrity Female] at a secluded beach, can she interfere with my ownership over that photo and prevent me from mass producing it and make a mint?"

As with everything in the law, the answer is a resounding "kind of!" Hot Celebrity Female can indeed interfere with your ability to profit from selling topless photos of her to a tabloid... but not through manipulation of copyright ownership (which, I presume, is what the question was really asking). When the subject of your art is another person, they cannot interfere with your ownership of the copyright, nor can they claim ownership rights over that photo simply because they are the subject.  The copyright is vested only in the artist except in these three scenarios:

1. Sale of the copyright to another (i.e. selling the photo and copyright to TMZ)
2. Conveyance of the copyright through a bequest or gift (i.e. giving the photo and copyright to a family member or friend)
3. Certain work for hire situations (usually on projects that require collaboration, like films)

"But," you might ask, "don't celebrities have ownership rights over their personal appearances?"  Nope.  Neither copyright nor trademark law offer protection over your personal appearance.  Trademark law DOES allow you to register many other visual elements such as logos, symbols, patterns, designs - but your personal appearance is not granted any protection under the intellectual property laws of this country.  This means that, unless you sell or gift the copyright, or the copyright isn't yours to begin with, there's really nothing that Hot Celebrity Female can do to interfere with your ownership.  If you are inclined to do so, you are free to take a highly compromising picture of her and sell or license that copyright to TMZ, The Daily Mail, The New York Post, and any other publication that profits from the exploitation of celebrity culture.  You'll probably make a small bounty doing that and in fact, there's an entire group of professional photographers who make their living precisely this way: the paparazzi.

But that's not the end of the story.  Owning the copyright to topless photos of Hot Celebrity Female does not give you an unassailable right to do whatever you please with those photographs.  Even though she has no ownership rights over the photos, she can still take you to court in a big way.  Everyone - from the lowliest plebe to the most glorious celebrity - has a right to a certain degree of privacy, and tort law provides several tools that allow people to fight an invasion of that privacy.

One of the more potent tools that celebs like to use is something called "appropriation of name or likeness."  An appropriation of name or likeness is considered an invasion of privacy when a person uses your name or likeness  for commercial purposes without your permission.  So when you take a compromising photograph of a celebrity, especially in locations where they have a certain expectation of privacy, you open yourself to liability.  That's why paparazzi and the magazines they sell to get sued ALL THE TIME.  Usually, if the celebrity is in a public place, like at a restaurant or on a red carpet, there's little they can do to fight publication of that image, so an appropriation of likeness claim won't go very far.  But when the photo is snapped in a private location (like in their backyards or on a balcony at a remote resort in the rain forest), you could end up losing all the money you made from selling that picture.  Remember last fall when some paparazzo snapped photos of a topless Kate Middleton on a secluded balcony using a telephoto lens? Do you remember the Royal family suing the french magazine that published them?  The magazine lost that battle because Princess Kate wasn't photographed topless at a public beach... she was on a private balcony that was obscured by tree cover.  The only way the photographer was able to get those photos was by using the kind of lens usually reserved for NSA spy satellites.

So the moral of the story... Hot Female Celebrity can't take away your ownership over that photo you took of her.  But she can, in some situations, prevent you from making money off of it.  You, as the photographer, have to decide whether all that trouble is worth it just to catch a glimpse of Kate Middleton's boobs.

Robin Hood And The Much Needed Change In Copyright Policy

A few years ago, Ridley Scott decided to direct a big budget Robin Hood film from an original script by Ethan Reiff and Cyrus Voris. The script was called Nottingham and it was a particularly unique take on the Robin Hood mythos: it was to be a medieval police procedural where the protagonist, the Sheriff of Nottingham, used forensic analysis and new investigation techniques to hunt down Robin (my understanding was that Robin would've been a fairly minor role, played almost like a movie monster). Well that's new! The take on the story wowed Scott and when he got involved, he hired writer Brian Helgeland to do a page-one rewrite of the script... because in Hollywood, the best way to show you love and appreciate someone's work is to scrap it altogether and replace it wholesale with something else. Anyway, the new collaboration yielded an even more intriguing concept: what if the Sheriff and Robin Hood were the same person but didn't know it?!! The story would be a Fight Club-esque exploration of personality disorders couched in the language of a medieval action film.

Like 'em or not, both of those concepts were definitely unique takes on the subject matter. But somewhere between the numerous rewrites and day one of principal photography, the story lost these elements and became 2010's Robin Hood, a fairly sober three hour origin story about the rights of landowners, following a middle-aged Robin as he tried to get King John to sign the Magna Carta.  Snore. The Sheriff himself showed up for about five minutes and was played as a bumbling ass.

Sadly, we'll probably never see Nottingham since the copyright to that script is now owned by Universal Pictures and they'll never let it out of their death grip. In Hollywood, when a writer pens a spec script (that is, an original, non-commissioned, unsolicited screenplay), the studio will always acquire the copyright from the writer before the script goes in front of the cameras. There are two ways this can happen: the first is through an "option." The studio pays the writer a nominal fee for the exclusive right to turn that script into a film for a stated period of time. The writer will retain ownership over the copyright until the script goes into production, at which point the studio will buy it outright (as always, I'm speaking in generalities and the specifics of each deal will depend on a number of different factors, such as the writer's reputation, the studio's negotiating tactics, etc). The second way is that the studio bypasses the option and buys the script directly from the writer.

Either way, the copyright eventually passes to the studio, and the studios tend not to be shy about exercising complete dominion over the work. They can shelve the script entirely or rewrite it from page one, changing literally everything that makes that script distinctive: the title, character names, thematic subtext, you name it. Even if the original writer is kept on board to do those rewrites, he is no longer working on his own property. He's just a hired gun and has no say over the changes demanded by the studio. Imagine getting fired from your own script because you didn't like the changes being made to it and you have a sense of how F'd up Hollywood can be sometimes. And this kind of thing happens all the time, where the final film bears so little resemblance to the original work that it becomes a functionally different entity altogether. And the saddest part is that these original screenplays languish forever in dusty studio vaults, never to be seen or heard from again.

So I'm 500 words into this essay and I haven't even stated why I'm writing it. Well honestly, I'm a film fan and I want to see Nottingham, which means that I'd like to see Reiff and Voris get another crack at having their script made. The fact that this will never happen is a creative travesty and I personally believe it violates the spirit of copyright. The protections given to copyright holders in the Constitution weren't meant to give them unassailable right to prevent others from using their work. Sure, there were protections against infringement, but the real purpose of the law was to promote artistic progress for the betterment of society, not for individual profit. Article I, Section 8 of the U.S. Constitution reads that:

“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.”

Just check out Title 17, Chapter 1 of the U.S. Copyright Law to see what I'm talking about. There are whole species of escape hatches and exceptions built into the law that are designed to give artists leeway in using and relying on the works of others.  Fair use is a great and popular example of that.  In other words, the "exclusive rights" given to copyright holders under the law aren't so exclusive when you step back and look at the law in its entirety. But over time, the copyright policy in this country shifted away from innovation for the greater good to favor the copyright holder, which in many cases tend to be giant corporations. These corporate copyright holders are granted a wide latitude when protecting their work, often at the expense of individual artists. Hell, just this past week the new Copyright Alert System went into effect - a system intended to prevent online piracy of copyrighted works. Now fighting piracy is a decent (if not noble) intention, but this new law was backed by the RIAA, an organization that spent 10 years suing teenagers and dead people for downloading music from peer-to-peer sites, so you have to wonder what their motivations truly are. Just a small example: as a result of an RIAA lawsuit, Joel Tenenbaum of Massachusetts owes the record companies $675,000 for downloading 22 songs.

I'm on record saying that this type of one-sided treatment needs to stop, which is why I think the copyright laws in the country should be revised to better reflect the needs of individual artists. In particular, I would support a change that would permit copyright to automatically revert back to the original author after a certain period of time - say 10 years - if it went unused or was otherwise changed to such a degree that it could no longer be considered a derivate work. In practice, this system would allow the studio to use the screenplay it had just purchased and try to make it into a film. If the script underwent dramatic changes (as with Nottingham), the original script could revert back to the screenwriters, who could then have another chance to make the film they envisioned.

I'm sure there are lots of kinks to work out with the change I've envisioned; namely, how to enforce the automatic reversion, determining what is considered "use" of the material, and how continuous that usage must be over the 10 year period, but I think this is a conversation worth having. There's no reason why Nottingham and Robin Hood can't co-exist. Especially in light of the fact that A) Robin Hood bombed, and B) a revisionist take on the material favoring the Sheriff as a medieval detective could have enormous franchise potential. If Universal doesn't want a piece of that pie, there's no reason it has to throw the entire thing in the trash.

[Author's note: I realize that I've posted two entries in a 3 week period bagging on Ridley Scott films, but I'm actually a big fan. I think Kingdom of Heaven is a masterpiece.]

Even When You Sell Your Work, You Still Own Your Work

My cousin Danny and his wife Lira are talented fine artists and painters. Every so often, they'll hold open studios at their home and I like to attend so I can see what they've been working on recently. During the last open studio, one of Danny's neighbors decided to buy a painting. After a very brief discussion over price, the neighbor went away and reappeared five minutes later with cash. He gave Danny the cash, they shook hands, and the neighbor walked away with the painting. The entire transaction took three seconds. There was no discussion regarding return policy, dissatisfaction with the art, or ownership over the art's copyright upon conveyance. Honestly, Danny didn't seem all that concerned about losing his rights to the work once it left his studio, and thus he felt no compulsion to memorialize the sale in writing with a discussion over terms of the sale.

And you know what? He was right not to be worried, because under U.S. Copyright Law, he still owns that work! You see, according to this circular put out by the U.S. Copyright Office:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent... Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the owner­ ship, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.

In plain English, this means that when an artist sells his artwork to a buyer, he is only selling the physical object - the wood, canvas, and paint - not the artistic expression that created the painting. In order for the copyright to be conveyed along with the artwork, it must be done explicitly in writing. Therefore, even though Danny's neighbor is now the owner of the physical painting, Danny still owns the artistic expression of that painting, and retains full control over how to use, display, and promote that image.

[Author's note: This does not apply to artists who are hired to create a custom work of art. That's a work-for-hire scenario and the copyright belongs to the person who commissioned the work, not the artist who creates it.]

Here's another recent example: the wedding photographer I hired to make me look good on my wedding day retains the copyright to my wedding photos. If he decides to promote his business using images he took of me and my wife, I have no say about it, even though I own the physical prints and JPEG files of those photos (as long as I'm not defamed, but that's a blog post for a different time). So this awesome pic of me?

Even though it's my face and my killer smile, I can't make any money off of it. I should add that buyers DO retain the right to display the physical work for non-commercial purposes, but will of course open themselves to a lawsuit if they attempt to make money off a copyright they don't own.

So if you're a fine artist and you're concerned that by selling your work you lose all rights to it, don't worry. You will control that work for as long as you live (and for 70 years after you die), even if you've long since sold the piece of canvas it was painted on.

[Author's Update, Feb, 18th, 2013 1:17pm: Danny told me today that following a sale, he will provide buyers with a Bill of Sale informing them that the copyright remains with him. This is a good practice and I highly recommend that everyone out there adopt this or a similar practice. Too many artists think that once they sell the work they have to give up the copyright, and that's just not the case.]

Sweat the Business Stuff Redux: Patience and The Art of Turning Your Art Into Your Business

While visiting my family in Connecticut over the holidays, my mom came to me on behalf of a friend who had a legal question.  This friend "Sally" is a middle school teacher and had developed a unique idea for an educational curriculum for science teachers.  She wanted to market and sell the curriculum, but had some concerns over whether she could use the title she came up with.

Since I was in the Christmas spirit and Sally was operating on a budget of less than zero, I told my mom that Sally could very easily (and for free!) run a trademark check at the U.S. Patent and Trademark Office website (titles are protected under trademark law, but only if registered through the USPTO).  If the title was available, the website explained how she could register it and what it would cost.  I also suggested to my mom that Sally find a way to hire a lawyer despite budget constraints because A) I'm not licensed to practice law in Connecticut and therefore couldn't provide anymore worthwhile advice, and B) there might be some trademark dilution issues if the title was too similar to something else already out there.

A few days passed and my mom told me that Sally had gone to the USPTO website but ended up without any answers.  To Sally, the website was difficult to navigate and understand; she wound up more confused than ever.  When my mom asked me what Sally should do, this was my answer:

"Sally should hire a lawyer.  If she can't afford one, she'll have to become her own.  That will mean spending a lot of time being confused at first.  But eventually she'll understand and be a better business owner because of it."

In the past, I've spoken about sweating the business stuff, but I haven't really detailed what that means for all you budding artrepreneurs out there.  So by way of closing out the year at The [Legal] Artist, here are the top three things you and Sally need to do to turn your art into your business:

(1) Have patience.  Seriously, this may be the most important thing I ever tell you.  Artists, by nature, are doers who thrive on activity and creation.  That's a wonderful thing in my opinion, but successful businesses require someone behind the wheel to be thinking and planning, playing the long game (for your Boardwalk Empire fans out there, think of it this way: every Lucky Luciano needs a Meyer Lanksy).  And playing the long game requires patience.  In Sally's case, if she can't hire a lawyer to walk her through this process, she's going to have to do it herself.  Which means looking at a lot of documents she won't understand.  Sally will end up frustrated and agitated and the business will take off a lot slower than she wants.  But that's okay!  If she has patience and keeps at it (with a little help from Google) these complicated things will eventually seem less complicated.  When I started law school, I had to read each case 3-4 times before I understood what I was reading.  With some practice, I learned how to do it in a fraction of the time.   If Sally spends an hour or so clicking around the USPTO website, eventually it will start to make sense and she won't need to pay a lawyer $400 an hour to do something she can do by herself for free... if only she has some patience with the process. 

(2) Decide what kind of form your business will take.  There's no doubt about it - people take you more seriously if you're a business.  Years ago when I was a young television producer, I went out to pitch a number of TV show and script ideas.   One network executive looked me right in the eye and said "we like you, but we will not do business with you until you incorporate."  A week later, Hammerspace Productions LLC was born. 

If you want to turn your art into a business, then you're going to have to actually turn it into a business; that means deciding what type of business you want to create.  For artrpreneurs, the most obvious choices for business type are sole proprietorships (if you're the only employee) and LLCs, mainly due to the low start-up costs and paperwork.  There's a good article here explaining the difference, but the gist is that with an LLC, you pay income tax for both yourself and the business, but the business shields you from personal liability (if you're sued, they can only come after business assets, not your personal assets).  With a sole proprietorship, you only pay taxes on the profit you make, but you are open to personal liability (meaning someone can sue you for the acts of your business, putting your personal assets at risk, such as your checking and savings accounts, and even your house).  In a sole proprietorship, you generally do not file any documentation with the state, whereas an LLC requires certain documentation to get going (such as a federal EIN, state and federal tax documents, etc).  Check with your state's Secretary of State to find out wha documents they require.

(3) Draft a business plan.  This is a tough thing to ask of artists because it requires them to think about things like taxes and finances and long-term planning.  Hell, even after seven years producing and three years of law school (and dozens of jobs and internships in between) I'm still struggling with it.  But a business plan is extremely necessary for two reasons:  First, it shows outsiders that you're serious and have given your business some thought.  Second, it lays out a path for you and helps you understand steps you need to take to get your business off the ground.  A business plan need not be written in stone.  It should be a living document that grows with the business.  Put in as much or as little detail as you want.  Regardless of whatever form the plan takes, it should impart one clear message: you have thought about this business and know what is required to make it a successful one.

As you build your business, there will be a lot of little things to consider.  How will you accept payment?  How will you market your wares?  Will you pay taxes yearly or quarterly?  All of these things are important on some level, but getting these big decisions made will take some time, so don't rush it.  Have a little patience.  I promise that you (and Sally) will be glad you did.

Have a Happy New Year everyone!

"Caveat Emptor" or Why It's [Kind of] Okay For Facebook and Instagram To Steal From You

"If you are not paying for it, you're not the customer; you're the product being sold."

- Meta-Filter user blue_beetle

I had planned on writing about Instagram's massive PR shit-storm this week so I could address the ramifications of its new terms of service; you know, where they basically said to their users "you still own your copyrighted work, but we're going to strip away all the rights surrounding that so we can make money off your work and you can't do anything to stop us." [If you don't know, Instagram proposed that they could sub-license photos you posted in the app to other entities such as advertisers without paying you, the copyright owner]. I ended up not writing about it because the backlash was so big and swift against the social network that they backpedaled, reverting to their old terms of service.  Thus ended the issue in my mind.

Then I had a change of heart because I realized that this was a good time to discuss a topic that I think everyone should be well versed on: caveat emptor, a.k.a. let the buyer beware.  Caveat Emptor has its roots in property law and the idea is pretty simple: you should do the research when you buy something.  If you fail to cross all the "t"s, dot all the "i"s, you don't have any legal recourses when you buy something that turns out to be defective. When you sign a contract, courts presume that both sides know what they're getting themselves into.  That's why you generally can't plead ignorance when a contract screws you over.

So when blue_beetle says "if you are not paying for it, you're not the customer; you're the product being sold" he means that when you sign up for a Facebook or Instagram account, you have to assume that these services want something from you, and you should read their terms of service and find out what you're getting into.  And truth be told, I [mostly] agree with blue_beetle.  Now I certainly don't condone someone profiting off your copyright without giving you a cut.  And I really get up in arms when large corporate copyright holders try to stick it to individual artists who don't have the power or wherewithal to fight back.  That violates everything I stand for.  But people do need to have  certain expectations when they sign a contract with these services - and make no mistake, a Facebook or Instagram account is a legally binding contract.  These services are not charity organizations; they are corporations (or rather, a single large corporation due to Facebook's acquisition of Instagram earlier this year) and the paramount driving force of a corporation is to make lots and lots of $$$.  If that means exploitation of its user base, then so be it.

When Facebook shares your personal information with advertisers, you don't have an expectation of privacy to that information.  After all, you shared it freely and willingly.  And even if you limit which users can see that information with Facebook's privacy settings, your information is never private to Facebook - your contract is with them, not with other Facebook users.  Meanwhile, if Instagram decides they want to license photos you share to advertisers, then can do it simply because you agreed to their terms of service.  Is it ethical?  Not really.  But is it legal?  Unfortunately it is.

I believe that the first step to controlling your artistic destiny is becoming vigilant to the situations you get yourself into. When you post a picture to Facebook or Instagram, you should understand that they will take some level of ownership over that picture.  Despite my many gripes, I will be sticking with Facebook and Instagram for the time being.  I understand that they want something from me and I'm willing to accept that in return for the personal and commercial benefits I derive from using those social networks.

But just because something is legal doesn't mean we have to let them get away with it.  There are other ways to measure success beyond a lawsuit.  For example, exploiting users' copyrighted work as Instagram tried to do this week is pretty bad policy.  We know that because the level of apoplexy that erupted forced Instagram to scurry back into the warm (if financially shallow) embraces of its old policies.   Instagram knows isn't the only photo sharing app out there with neat filters and it learned that if it can't work WITH users instead of against them, well there's always Flickr and Hipstamatic waiting to take your business.  And they'll be much more agreeable to having terms that benefit the user.

Happy Holidays everyone!

[Author's correction: in my post a few weeks ago about the Facebook copyright policy issue, I stated that Facebook can't arbitrarily change its terms of service once you sign them.  While that is generally correct in normal contract situations, that is not how it works with services like these.  Both Facebook and Instagram state in their terms of service that they may materially change their terms at will, and by continuing to have an account with them, you agree to those  new terms.  I think that such terms are probably bad policy as well, but I see nothing legally wrong with them.  If there are any contracts attorneys out there who are willing to educate me otherwise, I'm all ears.  I'd love to hear that such terms violate some law or another.]

What You Can and Can't Copyright

A few days ago, I was discussing this whole "Facebook Copyright Notice" ridiculousness and in that post I mentioned that your status updates were copyrightable.  That statement created a small stir (insomuch as I am capable of creating a stir) and since then, people have been asking me about what is and isn't copyrightable.  So I thought I'd quickly address it here.

You can copyright all "original works of authorship fixed in any tangible medium of expression."  U.S. Copyright Law protects, among others," literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture."  The list of works protected under the law is not exhaustive and is wide open to future forms of artistic expression not contemplated by the drafters of the law.  Here's what copyright law does not protect: "facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."  To get a better sense of how that works in the real world, take a look at this picture my wife snapped of me last year.

I'm sitting on the front stoop of my brother's apartment in Boston.  Now, the stoop itself is not copyrightable, nor am I, for that matter.  In fact, every "thing" you see in that photo - from my clothing to the keys I'm holding, to the flower arrangement behind me - none of that is copyrightable because they're all "facts" (they may on the other hand be patent protected, but that's an issue for another time).  However, the photograph containing all those things is copyrightable and is in fact the intellectual property of my wife.  That's because it is her "expression" of those facts and it is fixed in a tangible medium (i.e. photograph). [For the record, the photo was taken with Instagram and like Facebook, does not claim any ownership over content you create with it.  It merely takes a license to use and display your content for as long as you own an Instagram account.]

The same goes for other types of communication, like emails or interviews, that deal heavily in facts and are not often considered to be original works of authorship worthy of copyright protection.  However, generally speaking, both are protectable forms of expression.  While the facts contained within the email or interview are not protected under copyright law, it is the arrangement of those facts in a fixed medium (for an interview, a transcript or tape recording. For an email, well...an email) that gives it expression.  There's a good article here discussing the copyrightable nature of interviews.  I should note that the owner of the copyright to an interview can vary depending on the facts of the case.

If you ever find yourself asking if something you've created is protected by U.S. copyright law, just ask yourself:

1. Did I create this?
2. Is it something that can I show people (if it's digital, it counts.  Your expression need not be printed on paper)?
3. It is an expression of something?

If the answer is yes to all three, then you probably have a work that is protected by U.S. copyright law.  Of course, like everything else in the law, some of this stuff can change depending on the specifics of each individual case.  If you are unsure about whether something you've created is copyrightable, ask an attorney.

One last note: as a rule, there's no size limit placed on the work in order to qualify for copyright protection, which is why your two-line status update qualifies for copyright protection.  However, the smaller your creation becomes, the more you move out of copyright and into trademark territory (for example, a phrase like "You're Fired!" or even single words or names like "Superman" or "iPhone".  Logos and branding are also generally the purview of trademark).  In short, your scatological haiku is protected by copyright, but your friend saying "that's a spicy meatball!" is protected by trademark.