Rip-Off Protection Report for Creative Professionals ... · 5 | Rip-Off Protection Report for...

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Kathryn Goldman

Transcript of Rip-Off Protection Report for Creative Professionals ... · 5 | Rip-Off Protection Report for...

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Kathryn Goldman

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© 2018 Creative Law Center Image used by permission of artist Mateus Bailon

2 CREATIVE PROFESSIONALS

3 PROTECT YOUR WORK

5 POLICE YOUR WORK

6 KEEP GOOD RECORDS

7 SIGN A FAIR CONTRACT

contents

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3 | R i 3 | Rip-Off Protection Report for Creative Professionals p - O f f P r o t e c t i o n R e p o r t f o r C r e a t i v e P r o f e s s i o n a l s

You’re a Creative Professional (or will be) if you:

actively sell your creative work;

create something that you intend to sell;

sell creative services like website, logo, or publication design;

draw illustrations for others to use;

write, perform, or produce music for money;

photograph portraits, events, or products; or

engage in any creative activity and display, perform, or produce work for others intending to make money.

If you create art and want to generate revenue, you must decide how to protect your work so you can profit from it.

This report is written for you.

If you believe that anything found on the Internet should be free for all to share, take, and use any way they like – this report is not for you, necessarily.

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PROTECT YOUR WORK: Register It

In order to profit from your work after creating it, you need to protect it.

The strongest option available for protecting creative work (anything that contains a modicum of creativity and is fixed in a tangible medium) is to register it with the Copyright Office.

THE PAPERWORK

To register a work, an artist or an author must file with the Copyright Office the correct application form:

TX form for literary works;

VA form for visual works of art;

PA form for the performing arts;

SR form for sound recordings; and

SE form for single serials.

the filing fee (currently $35-$55 for electronic filing); and

deposit copies of the work.

The forms can be found at the United States Copyright Office (www.copyright.gov).

Considering the low cost of registration, there is little reason not to register – and lots of reasons to register.

Registration can give you the leverage you need to stop someone from copying your work. If your work is registered before it is infringed or within three months of publication, you may be entitled to recover damages of up to $150,000 and attorneys’ fees.

Registration makes it easier to find an attorney willing to represent you, may allow you to avoid litigation, and may reduce the cost of litigation if a problem ever goes that far.

It takes several months to receive a certificate of registration, but registrations are effective as of the date the application is received by the Copyright Office. Keep the confirmation emails as proof before the certificate arrives in the mail.

Registration is not a condition of copyright protection. It is a legal formality that makes a public record of your work. However, this legal formality is important if you anticipate licensing your work or displaying it in any way which puts the piece at risk for infringement—on the web, for instance.

Registration is easy and inexpensive. Do it.

UNDERSTAND COPYRIGHT PROTECTION

A work does not need to be registered in order to be protected by copyright. The moment a creative work is fixed in a tangible form of expression, copyright protection attaches.

Relying on instant protection can cause you problems.

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Registration is needed to enforce your rights in court, including:

the right to reproduce your work;

the right to distribute your work;

the right to make derivatives or create new works based on your protected work; and

the right to perform or display your work in public.

THE “c” IN A CIRCLE – ©

There is a common misunderstanding that only works with a copyright notice — © (accompanied by the date and name of the creator) — are protected by copyright. This is not true.

All creative works are protected the moment they are created and fixed in a tangible form of expression.

Those are the magic words — “creative” and “fixed in a tangible medium.”

A copyright notice is not needed. But it is, however, a good idea.

The purpose of a copyright notice is to let the world know whose work it is. The notice sends a message that you expect your rights to be respected and you will enforce them if need be.

It is so easy to put a copyright notice on your work and the benefits are so great, that there is really no reason not to do it.

One reason not to do it is that a copyright notice on the face of a piece of visual art can be ugly. Put it just below the image if you do not want the image obscured.

Except for aesthetic reasons, the notice should be placed on the work itself.

The other message you send by using a copyright notice on your work is that you understand copyright and respect the work of others. That’s an important message.

NOTE: Idea protection is different from copyright protection but can be just as important. Ideas are usually protected by contract and by keeping them secret.

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POLICE YOUR WORK In order to protect your rights, you must police any unauthorized use of your work. If you find that someone has reproduced your work without your consent, or that one of your licensees has used your work outside the scope of the license arrangement, that individual or licensee has infringed your copyright in violation of federal law or may have breached a contract with you.

The first step is to send the infringer a letter or email informing them of your rights and demanding that they stop. There are no magic words that will make an infringer stop infringing.

You want to make it clear that it is your work, it is protected, you will enforce your rights and it will end up costing them money.

Invite a response, start a conversation with the offender.

If the infringement takes place on the internet, you can send a DMCA (Digital Millennium Copyright Act) takedown notice to the internet service provider (ISP) or website host to demand removal of the infringing material or access to it blocked.

The next step is to sue for infringement. Remember you can’t file suit until you have registered your copyright in the work. At this point in the enforcement process, legal advice is recommended.

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k

KEEP GOOD RECORDS Remember that you are in business. All business transactions should be memorialized.

There are tax implications for any transaction even if no money changes hands – if you are given (or give) a share in a project, for instance.

Keeping accurate records of all sales, licenses, royalties and expenses is also crucial for measuring whether you are making a financial success of your business.

INCOME AND ACCOUNTING All contracts should require the other party to provide you with regular payment and accountings so you can monitor your income.

Payment is receiving the cash. An accounting is a report that shows how much of your work has been sold. Many book publishers pay royalties twice a year but the contract says they only have to account to you once a year. All contracts should require that books be kept according to standard accounting principles – hand written records in secret code are suspicious. EXPENSES Expenses related to a business purpose should be tracked and recorded to be deducted from your taxes. Log mileage. Keep your cash receipts.

ACCOUNTANTS It is a good idea to hire an accountant for your business when you can. Many bookkeepers are highly skilled and can be less expensive.

Keep your finances organized and you are less likely to be ripped off.

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IF YOU USE AN AGENT, SIGN A FAIR AGREEMENT

An agent is paid, in part, for who they know. It is your agent’s job to find publishers, galleries, customers, or manufacturers interested in publishing, showing, buying or licensing your work.

Good agents are a valuable business asset, but they can be hard to find.

Because agents can receive a significant share your profits sometimes forever, you need to be sure that the right representative has your best interests in mind.

Research your potential agent before signing a contract. You want to know:

the agent’s area of specialization;

how much business they do; and

with whom they work.

Ask for referrals. The agent should share contact information for actual clients.

Many agent agreements are exclusive. This means that the agent is the only agent for all of your work. An exclusive agreement may not suit your needs.

Some agents may specialize in selling your primary work. If you are looking for someone to find and negotiate licensing opportunities or a book deal for your visual art, you may need a different, or second, agent.

Some agents require that you sign an agreement for an extended period of time. This allows them enough time to market your

work, negotiate deals or licenses on your behalf, and begin bringing in royalties.

If you are not interested in licensing and only need an agent to help you sell your work, you may not want to sign a long term agreement.

A shorter agreement will allow you to change agents if the relationship is not working out.

Standard provisions that should be included in an agent agreement are:

the right to reject a proposed deal;

a statement that your work in possession of the agent will be returned at the end of the agreement;

an explanation of who will bear the expense of promotional and advertising materials, travel, shipping, and other expenses;

the agent’s percentage for all of the various transactions such as licenses, sales, and agreements negotiated with and without the help of the agent (excluded deals); and

a reasonable termination provision (either you or the agent have the right to terminate the agreement) with a certain amount of notice.

These points keep the relationship fair.

Further reading: A Guide to Contract Terms: How to Negotiate with Literary Agents.

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The purpose of this report and my posts at the Creative Law Center is to help you be more thoughtful about intellectual property and the law when you write your stories, create your art, and build your business.

You cannot wave a magic wand to keep your creative work from being stolen, but you can take steps to strengthen your position, empower your enforcement rights, and protect your revenue streams.

Kathryn [email protected]

P.S. If you aren’t on my mailing list, you’ll miss out on the extra tips I send on how to protect your work and build your business. Here’s where you can sign up: Rip-Off Protection Report for Creative Professionals.

A FINAL NOTE