While it was relatively fresh in my mind I wanted to recap the intellectual property (IP) rights lecture today, err, yesterday…
* * * NOTICE: I am not a lawyer and this is not legal advice! * * *
It is important to understand the basics of IP so you don’t get yourself or your employer into legal trouble, if you can help it.
Once a creative idea is expressed into fixed form, it is protected by copyright. Copyrights are a bundle of rights, including the right to make copies (reproduce) and the right to make derivative works. When a copyright expires, it enters the public domain. Factual information cannot be copyrighted. The federal government cannot hold copyright. Check out the US Copyright Office website, including this great PDF on copyright basics.
In a few situations, you can use copyrighted works without permission. It’s called “fair use.” I mentioned a great source of info on fair use, which is no longer active but discovered it can be accessed via the internet archive. I highly recommend reading this site, especially the discussion of the four factors used in determining fair use. (UPDATE: I must have had the URL wrong, as The Fair Use Network is indeed active.)
In article 1 section 8, copyright protection was written into the Constitution. Then President George Washington signed the first copyright act into law in 1790 (H.R. 10). It was modeled on Britain’s Statute of Anne. The first U.S. copyright term was 14 years + 14 years renewal. In 1831 it was extended to 28 years with a 14 year renewal. Copyright first protected only literary works. Art works were not protected until 1870. Other revisions to the law have taken place through the years, including what can be protected and extensions of the term. In 1978, it was life (of the author) + 50 (years). In 1998, the Sonny Bono Copyright Term Extension Act extended it to life + 70, and even more for corporate copyright owners thanks to heavy lobbying by Disney. There is a nice timeline of important milestones of copyright here. And you can try to make sense of the terms of protection with the handy chart here.
Whereas copyright means “all rights reserved,” there is a “some rights reserved” alternative, and that is Creative Commons. Respect the terms, be it attribution, share alike, noncommercial, no derivatives, etc. If you weren’t in class, watch the video!
Some things cannot be copyrighted but they can be trademarked. Trademark (and service mark) protection is meant to differentiate in the marketplace, and can be registered ® for full legal benefit. It is meant to protect against unfair competition and to be identifiable to consumers. Here is a brief description. And more here. Trademarks must not only be registered, but must be continuously used in commerce and vigorously defended against marauders in order to be enforceable in the courts. Product shape, packaging, and color may also be protected under trade dress. This is a great primer on trade dress and this is an interesting legal blog illustrating just how many suits are filed on this kind of thing. Regarding one example we discussed in class, here is the Wikipedia entry on Tiffany Blue.
So when you work on a project that combines artistic or creative elements, start by assuming that everything already created is copyright protected, and that you must seek permission and/or pay a fee to do anything with it. And even then you’re not buying it, you’re licensing a use of it. As designers, this especially means type (in the form of digital fonts) and image (either photography or illustration). Here are some usage arrangements to be aware of:
- Assignment: custom creations priced per situation
- Commercial: pay to use (based on number of devices)
- Shareware: pay to use, on the honor system
- Free, for commercial use
- Free, for personal use
Note, some fonts are licensed along with the operating systems of your computer, or your software packages. Sometimes fonts are bundled with a book, but you still must read the license as these are frequently only for personal use. Examples include the Indie Fonts series of three books.
Different foundries have different terms regarding the number of devices the font can reside on, as well as restrictions for PDF embedding and sending to a printer or service bureau. It’s a good idea to become familiar with the license from each foundry you buy fonts from. Don’t be like the alleged designers at NBC!
Takeaway: Know the terms, read the End User License Agreement (EULA), do not share fonts.
- Assignment: custom creations priced per situation
- Rights-managed stock: priced by usage (size, location in piece, quantity, geographical scope)
- Royalty-free stock: priced by size and provenance
- Creative Commons: some rights reserved
- Public Domain
Takeaway: Know the terms, read the End User License Agreement (EULA), do not share files.
I found this little book, 101 Questions About Copyright Law to be helpful to the lay person (me) for a straight read-through, and of course, The Graphic Artists Guild Handbook is an invaluable resource for all things professional, including an understandable discussion of copyright.