Excerpt from Digital Desk feature interview:
The Copyright Conundrum
The music industry isn't the only artistic entity reassessing copyright infringement issues when it comes to the web. Graphic and flash artists are at risk for having their work reproduced without compensation as well. And if artists trying to make a go of it on-line wish to avoid the traditional "starving" moniker, they need to know how to protect their work.
Cha-ching
That's where Torontonian web developer Franke James comes in. She's created a guide called 'Nudeguru's Guide; The Art of Money, Honey', that's, "all about tips and advice from artists and industry experts on how to protect your work and how to make money on the web from creative content."
Know your rights
James says the most important things they didn't teach in art school about protecting artistic work have to do with copyright (Read Franke's full 10 Copyright Tips for Flash Artists here):
"When you sell a piece of work, say a flash cartoon, you actually have a bundle of five rights: The right to reproduce, display, distribute, perform and the right to create derivative works. And those rights can be sliced and diced a lot of different ways."
James' guide also contains a wealth of information on everything from licensing and revenue generators to a layman's guide to the contract lingo most likely to be used to completely confuse.
What do you think?
Are you an on-line artiste? Do you have any tips of the trade to pass on to your fellow flash-ers? Have you had any incidents of unscrupulous art-snatchings? tell us about it...
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The FLY at Nudeguru.com - "10 Copyright Tips for Flash Artists"
10 Copyright Tips for Flash Artists was written by Franke James, Nudeguru.com, with the assistance of Andrea Rush, B. Mus., L.Mus., B.C.L., LL.M., Heenan Blaikie - www.heenanblaikie.com .
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Copyright is a complex subject -- just look at the controversy around MP3! But understanding copyright can help you to negotiate higher fees for your work, and allow you to earn an ongoing revenue stream from your creative properties for years to come. It's worth investing time to learn about copyright because it can affect your earnings dramatically -- for the better.
Together with Intellectual Property lawyer Andrea Rush, of Heenan Blaikie, Nudeguru has created "10 Copyright Tips for Flash Artists".
Andrea has a wealth of international expertise ranging from the Canadian Bar Association Executive Committee, Information Technology Section, to the editorial boards of Managing Intellectual Property (based in England) and the Journal of the Copyright Society of the U.S.A. (see bio at end) For further research check out our "shortlist" of resources for Copyright, both US and Canadian at the end.
Tip #1 The Good News on Copyright:
Your Flash and digital artworks are automatically protected by copyright law in Canada and the US. Both countries belong to the Berne Convention which are international laws governing copyright. For added protection, you can register copyright in your artworks, but it is not essential in either country.
However, you should always mark your work with the copyright symbol, your name and the year of creation (although this too is not mandatory). Some countries insist on the copyright symbol being displayed. Even though marking is not always required, it does remind people that the work is protected by copyright.
Tip #2 The Renaissance Artist vs. Team Effort:
If you are the illustrator, animator, programmer, photographer, musician, singer, art director and writer of a Flash cartoon you may own all or part of the copyright to that 'creation', depending upon whether the work originates entirely with you or is 'inspired' by others. However if your work is a product of a team effort (as most flash cartoons are), then you have overlapping rights which must be respected, and protected. For example the illustrator owns copyright in the cartoon's illustration, and the writer owns copyright to the words. They may be separate works or 'joint works' in which each of the contributors owns a portion of the whole. Moving forward on a project can get complicated, as you need to have permission in writing from each rights holder. A contract which outlines what you are allowed, and not allowed to do, can simplify the process, and ensure that you don't miss opportunities or infringe on another creator's copyright.
Tip
#3 The Artist holds a Bundle of 5 Rights:
Look at your hand and imagine each finger as representing one of the rights you automatically hold when you create any work of art (literary, musical, theatrical, artistic etc.)
1. The right
to Reproduce your work
2. The right to Publicly Display it
3. The right to Distribute it
4. The right to Perform it in public or telecommunicate it to the public;
5. The right to create Derivative Works.
Tip #4 Slice and Dice for Negotiating Power:
When you license or sell a client your flash cartoon, you can slice and dice those 5 rights many ways. For example, you may want to give them the right to publicly display your flash work, but hold back the right to create derivative works (eg. t-shirts, mugs). Or you may want to give the buyer the right to distribute your work on the Internet, but hold back the right to use the work in other media (eg. TV, theatres, newspapers, magazines) unless you are paid a higher fee. Once you get the hang of copyright, it can be a very useful tool to help you get paid what your work is worth. If the client wants to pay you a lower fee, hold back on some of the rights. If they need them in the future they can come back and renegotiate with you.
Tip #5 Character Rights:
If your flash cartoon features an original character be very careful not to sell 'the baby with the bath water'! Character rights are very important to retain in case you want to develop related shows, books or merchandise. The Disney empire generates $7.5 billion annually in licensed character merchandise (from the Licensing Business Handbook by Karen Raugust).
Tip #6 MP3 and Napster:
In this age of MP3 and Napster, Flash artists may be tempted to be casual about the use of other people's music. They may have heard that "up to 8 bars" of music are allowed to be used without paying the original artist. This is not true. If you want to use a piece of music you must obtain a license from the copyright owners or from a society that represents them such as SOCAN (The Society of Composers, Authors and Music Publishers of Canada).
Tip #7 Moral Rights:
This can
seem like an innocous little clause, but it actually packs a big wallop.
It is the right to stop others from modifying your work in a way which
harms your honour or reputation, and stays with you even after you assign
your copyright. If you sign away your moral rights to your flash creation,
the buyer can do whatever they want with it and you have no say. An extreme
example would be that the characters in your cartoon are taken and modified
to look like porn stars. If that is what you intended that's fine, but
if it's not, it could seriously undermine the integrity of your creation.
Tip #8 Was your Flash cartoon done for a freelance client?
Depending on your contract or agreement you may still hold the copyright -- check the fine print. In Canada and the US, the creator needs to sign away their copyright in writing for the rights to be legally transferred. A verbal agreement is not binding on the transfer of copyright -- this is to avoid authors and artists being taken unfair advantage of.
Tip #9 Multiple choice -- Who's the owner of the copyright from the list below?
a) the
creator of the flash work
b) the employer, if the flash work was created on the job
c) the client
Any of the parties above could be the owner of the copyright, depending on whether the creator was a full time employee, or there is a written agreement transferring the creator's rights. However the exception to this rule is in the case of a commissioned photograph for a fee. By default the person commissioning the photo, (provided that he/she pays for it) owns the copyright, which may not seem fair but that's the law. In the case of an independent contractor, the creator (the employee) must specifically transfer their rights in their contract, or in a separate agreement otherwise the author still retains their copyright.
Tip #10 Work-for-hire? A Lose/Lose situation
If you are starving, or inexperienced you may have to take "Work-for-hire" jobs, but in most cases they are an abuse of the copyright law. Many clients hire freelance artists on the basis of "Work-for-hire" contracts so that they will own the copyright. The client wins because they get to keep the copyright and they don't have to pay the Work-for-hire artist a salary with benefits, workmen's compensation, a retirement savings plan, or any other perk that comes along with a regular job. However it shortchanges the artist because they are giving up all future royalties, and revenue opportunities associated with their creation, and they are not getting any of the benefits of being an employee. The Graphic Artists Guild, www.gag.org, is categorically opposed to Work-for-hire contracts.
10 Copyright Tips for Flash Artists was written by Franke James, Nudeguru.com, with the assistance of Andrea Rush, B. Mus., L.Mus., B.C.L., LL.M., Heenan Blaikie - www.heenanblaikie.com