Copyright and Trademark Issues Simplified

]If you want to see a lot of bad advice, ask about copyright on a writing discussion board. It seems that everyone has that little kernel of wisdom that they need to unload whenever the topic of copyright is brought up.

The problem is that if you are serious about running your writing as a business then you need to separate the wheat from the chaff, and you need to wade through a lot of chaff to find that wheat.

You should not have to do that.

Obviously, you need to take a couple of business and legal classes if you're serious about this. Or read a couple of books about business and law. Or even listen to some podcasts on law and business. And you need to make sure that these books and podcasts are worth the read or listen; there's a lot of wisdom to the adage "garbage in, garbage out" after all. You need that wisdom, but you also need to listen to the reviews, and I mean listen; a little bit of cynicism can keep you away from the worst of the worst advice.

Actually, let's expand on that: It's not just important to read reviews, but really read those reviews. If the review is a solid 5-star review that does nothing but gush about how awesome the book is, it's probably a good idea to ignore that review; it was likely written by someone close to the writer. Conversely, a 1-star review that does nothing but slam the book is just as usless, and was likely written by someone with an ax to grind. In short, avoid reviews that are too extreme.

Also, ask yourself if the review has any relevance to the book; sure, binding is a reason for a negative review, but did the reviewer mention anything about the content of the book itself? Keep in mind that this applies to review bombings in both directions; some people will give a book a positive or negative review based on perceived moral issues rather than the value of the book itself. Others will make fun of the book based on the concept rather than what is actually presented. In short, try to determine if the review has been given due to issues that have nothing to do with the quality of the book itself.

Lastly, try to avoid faddish advice. Some people will try to dress up the same old advice in a different skin, such as making it seem to come from an evil mastermind or an ancient teacher; that's fine. Others, however, will try to link to ideas that are more faddish than anything else, such as basing leadership on college degrees or socio-economic status; while they appear valid on some level, such advice rarely does as well as it looks.

Almost invariably, there is some sort of classist or elitist problem with the advice and so it dies as it should; however, those ideas seem to take hold for a while. You need to do your level best to avoid that sort of advice as it can sink you, especially if you take on several of them in a row. In essence, just avoid advice that goes too far outside the norm; it may sound good, but following it may create some sort of unforeseen problems.

When it comes to advice, don't be afraid to question its origins or purposes. That said, there is the following caveat: I am not a lawyer, but I have interviewed them. The following is a summation of those interviews and additional research. If you have a legal question, paying for a lawyer is well worth the cost. With that in mind, here is some advice on copyrights.

Trademark vs. Copyright

Copyrights and trademarks are vastly different entities: A copyright protects the art itself while a trademark protects its branding. In other words, a James Bond movie, book, photos from the set, or even script are all copyrights (they are the actual art) while the words "James Bond", the James Bond logo, and the names of any movies and associated artwork are trademarks.

This is important as a copyright is created when you finish the work but may require additional registration while a trademark must be registered to receive its protections. Also, each has different windows of applicability as well how hard you need to fight for them to protect them. As such, make sure you know whether something you are working with is one or the other.

You're going to see a lot of mentions for both trademarks and copyrights on this list; while they are related, this use does not imply that they are the same thing. It's just that if we're looking at defending your rights as a creator, you need to consider your actions in light of both.

Public Domain

Occasionally, a company may lose the fight for a trademark and so it passes into the public domain or a copyright may become impossible to enforce. More commonly, the duration for private use may have ended. In some cases, a person may have created something specifically so that anyone can use the asset without issue. These properties are considered "public domain" and anyone can use them.

However, before you use them, make sure that you do the due diligence and confirm that there are no rights holders attached to the property you are planning to use; ignorance of the law is never an excuse or, more accurately, a good defense in court.

Different Countries, Different Rules

Where you copyright something is somewhat important as protections change based on the country where it is written. A good example of this is an American work versus that of other countries: While it is somewhat universal that a work is copyrighted once it is completed, in most countries that confers full protection; if someone decides to use it, you can sue them for damages. In the US, you need to register the work for similar protections. As such, know the limitations of copyright protection in yur country before you start writing.

"International" Copyright

The Berne Convention offers limited copyright protection for work that have been copyrighted within their jurisdictions. However, this should not be seen as all inclusive; that is, just because you have written something in the United States, you may need to take additional steps to enforce your copyright in another country. If you're dealing with a country that doesn't respect foreign copyrights, such as China, things may get problematic.

The takeaway here is that there isn't really such a thing as "international copyright"; you still need to fight to enforce your copyright. Howver, the good news is that you have some basis in law should you need to defend your copyright.

The Poor Man's Copyright

This is the concept that if you mail a copy of a work to yourself, the work is protected against violators: The time stamp of the postage provides proof of when it was created. With the advent of email, this has shifted to emailing a copy to yourself for the same protection. While this "poor man's copyright" sounds all legal and stuff, it has o legal standing; that is, no court has upheld such an entity. Again, a work is copyrighted as soon as it's completed, with additional registration possibly being required; there is just no legitimate reason for this to work, so don't waste your time and postage (if applicable) doing it.

Fair Use

As part of the right of expression, copyright does have some limitations. There are two basic concepts here: Transformational use and education/critique/parody. "Transformational use" mans that someone has taken the original art and transformed it enough that it no longer resembles or meets the same use as the original art. The idea is that the art has been transformed enough due to a change in concept that it is no t longer the original work and as such is not covered by the original work. It should be noted that this is not as iron-clad as it may seem, especially if it is obviously you are just changing it for the purposes of being able to use it.

On the other hand, Fair Use is somewhat related and somewhat codified. The idea is pretty simple: There are some uses that are in the common good and therefore are allowed under law. If you are using the work to educate others, as part of a review, or are poking fun at it or a larger segment, then the courts will usually back your use of the property. However, note that this is NOT an iron-clad defense; courts have sided with the person owning the original copyright.

So if you are debating using Fair Use, try to avoid abusing it if at all possible, ie, only use it if you are actually using the work for education, critique, or parody, and not trying to skirt the rules.

Limited Use

While this is something you generally see in music cases, it is worth noting. The basic idea is that some people believe that if you only use a little bit of the copyrighted work, you should be okay. While this is usually seen in music and podcasting ("if I only use 8 seconds, I should be okay!"), there is some applicability when it comes to visual arts, especially if you're using a panel from another source. While some use the phrase "homage", too many use this as an excuse to swipe art.

Look up "Roy Lichtenstein" for some interesting discussions of this sometime. This is arguably the best way to kill your reputation in the art world, and should thus be avoided whenever possible. Have fun producing panels "in the art style of" but don't use actual panels.

Fan Art

This is a pretty weird one filled with all sorts of landmines. The problem is that a lot of fans produce some pretty good art for their personal use, and then decide to put that artwork up for sale. They believe that as long as they aren't selling too much there shouldn't be a problem, and that it's ensuring that the brand as a whole gets even greater exposure as more fans do it.

The problem is that most of this art being sold is, from a strictly legal perspective, a major copyright violation: You are basing a business, however small, on stealing someone else' work while profiting from that theft. While a lot of the works do fall under transformative works and Fair Use, too many don't, especially when the art was obviously stolen rather than using the characters to create all-new works.

The fun part is that companies are encouraged to defend their trademarks; if they allow too many people to use their trademarks without permission then they could lose their trademarks. This has put a lot of companies in the unenviable role of playing cop: They need to shut down the fan art in order to protect their trademarks even while creating a PR nightmare by going after their very fans who are trying to spread the brand.

So…where does this leave everyone? Most companies have no problem with people making a little bit of money from their brands; it's a great way to build fandoms, it's decent advertising, and some of the companies have been impressed enough that they have hired the artists involved. However, it's still illegal; just because it's not enforced all the time doesn't mean that it's all hunky-dory; if you're asked to stop, please do so. While everyone loves a fan, few hate fans that are killing the source of their joy, especially while claiming some right that they don't actually have.

"But I'm Not Making Money From It!"

Some people believe that as long as you're not making any money from something, it is perfectly acceptable to use it however you want. The problem is that you're infringing on someone's trademark, and they are encouraged by law to defend that trademark. The company has to defend their trademark or lose it, which could cost them the very thing that you enjoy about them; just because you're not making money from something doesn't mean it's not potentially costing someone else.

Yeah, trademark rules are constantly putting businesses and fans at odds, but please try to understand the business' perspective here. No one is questioning that it sucks, but this is one time the system helps to ensure that you can get more of what you love.

Sites Publishing Your Work

This is is a fun one: A lot of sites point out that they are publishing your works and for the purposes of publishing they are the agents of those that they are publishing. Understandably, a lot of people have interpreted this as meaning that the site controls of the copyrights of the works published on those sites. The reality is that the site has to take some agency in order to publish whatever its users decide to use the site for in order to make sure that the users can share their works with other users.

You should not see this as a challenge to your copyright; you do not lose any rights for using such as site. It is just legalese to protect the site from infringement; you are just agreeing that the site can publish the work so that others can see it, which is sort of how it's supposed to work: If you don't want others to see it then why are you publishing it in a public forum? As such, don't sweat this too much.

Now, if the site is publishing your work without your permission, then you are well within your rights to go after that site. This is why so many sites respect copyright: They would prefer you to go after the person posting it, not them for publishing it. This puts them in a weird place, but it is something that the bigger sites have to put some thought into how they handle it, for good or ill (Youtube, we're looking at you!).

Recipes

The simple version is this: There are a lot of things that you cannot get a copyright for, and sets of instructions are one of those things. This includes a lot of manuals, recipe books, and so one; if the basic point is to allow people to follow instructions to accomplish something, then you cannot copyright it. This does not, mean, however, that you cannot copyright comments, your take on the history of the item being created by the process, or even pictures. This means that while most of a book may fall under copyright rules, part of it (the recipes) doesn't.

[This shouldn't affect most people; it's included just for completeness.]

Stealing Ideas

Another thing that you cannot trademark or copyright is an idea. That is, you can copyright or trademark the realized version of that idea, you cannot copyright or trademark: Superman can be trademarked and his stories copyrighted, but the idea of a powerful alien that comes to Earth to fight crime cannot be trademark nor can the idea of two superheroes clashing due to a misunderstanding. This means that anyone can use a general idea, their could be some PR fallout from doing so. As such, try to make your expression of that idea the one everyone thinks of and have fun with it.

Common Use and Equivalents

A lot of businesses are relying more on some sort of "Common Use" for assets; this allows those associated with the company to use the assets generated by the company without royalty by others creating artworks for the company. While this is seen among a number of fandoms more interested in seeing what they can do more than anything else, you are seeing it used in more business models. It's important to recognize the limits placed on such agreements in order to avoid not only legal action but hurt feelings.

We're all looking to create the best fandoms we can, after all, and playing nice allows us to do so.

Why Splitting Up is Hard to Do

It is advised that you make sure that you have a contract in place defining who gets which rights. While this is usually split art/writing, sometimes it can get complicated, especially when the chores aren't split up. Also, there is the question of who gets the original artwork, even through it usually goes to the artist who drew it. And then there is the whole "work for hire" issue, especially, if someone is being paid to create art or do the writing. Basically, even if it's informal, decide how you will split assets; this applies just as much to who gets the rights for which characters as it does the physical assets of the business.

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Copyrights and trademarks are not as complicated as they may seem. They are trying to create a compromise between the mixing of ideas and that people should get paid for what they create. As long as that compromise is valued, it actually allows creators to have an incentive to try and pull off some of the weirdest things. So please respect trademarks and copyrights; if you want your rights respected, then you need to respect the rights of others as well.