I’m A Professional Too: Session 2 — Protect Your Creative IP
On March 28th, 2021, CAREspaces and SNS Arts Development Consultancy co-curated and co-hosted the second session of their five-part event series, “I’m A Professional Too Session 2: Protect Your Creative IP ” — a workshop aimed at helping all stakeholders in the space acknowledge the importance of protecting one’s creative IP as well as the IP of other stakeholders in the space.
This session taught its participants and viewers how to recognize, analyze, and apply IP concepts to real world case studies.
CAREspaces is a 501(c)3 registered nonprofit that aims to provide tangible measures for more conscientious and ethical workspaces in the Indian arts communities through resources for healing, learning, and accountability. SNS Arts Development Consultancy is a company that provides strategic guidance and arts management among many other resources for artistes. Together, CAREspace and SNS aim to start discussions on ethical professional practices within the Indian arts through their campaign and five-part series, #imaprofessionaltoo.
Part I: Provide Context
Define terms related to creative intellectual property and understand overarching concepts
Definition: Similar to any other type of “tangible” property owned by an individual or an entity, IP includes any intangible property created by the intellect that is original to an individual or company. There are 7–8 different buckets of IP, creative IP being one of the widest and most convoluted buckets. It is important to understand that all of us have intellectual property and every product does as well.
What is the importance of understanding IP on a Global Scale? And why is it important for stakeholders in this space to understand the nuances of this?
In the Indian Arts space specifically we are now all global artists and consumers using various multi-media platforms such as YouTube, Facebook, Instagram, TikTok etc. IP has no borders or boundaries and the way we now consume products art and music has changed vastly over the past 30 years. The law is yet to catch up to our changes in consumption however. Trademark, patents, and designs for example are country specific and bound to a geography. However when it comes to copyright this is not the case. Most countries signed the Bern convention which states that work created in one country is protected in all other convention agreeing countries.
Definition: Copyright protects original and tangible works, ideas are not protected under copyright laws however.
i.e. an author with a story in their mind does not have a copyright of this work until its documented and then registered
- In the US a copyright must be registered for it to be enforced. This is not the case in India however where registration is NOT mandatory.
- Examples of tangible work include literary, dramatic, musical, artistic work etc.
- Fair Use, is an exception to copyright infringement that recognizes some use of another’s copyrighted work can be regarded as “fair”. Purposes of this include, criticism, commentary, news reporting, teaching, scholarship, research etc.
- This is often determined on a “case to case” basis, and often depends on how transformative the use was. For example, taking the original work and adding artistic nuances that transform it into a different form of work altogether is considered transformative. The above fair use policies are applicable to the US & India.
Definition: Trademark protects one’s distinct brand identity. Trademark is a form of IP for a word, symbol, or design that helps consumers identity the source of a product or service, or even a name.
- In the United States, your name is trademark-able as long as it is more than just your surname. In India, trademark doesn’t need to be registered to be enforced, however it can be registered, and similar to the US a full and or unique name must be registered.
Q: What if I want to register my name as an artist however someone already has it Trademarked?
A: Whoever registers a trademark first has rights over it therefore it is recommended to register a trademark as soon as you can.
Definition: a patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from marking, selling or using the invention for a period of time. Patents usually have unique function or design or a specific purpose.
In the music world creators and artists have tried to patent instruments and electronics. Taking the example of a keyboard amplifier, while there are several design variances amongst brands, the individual patents is around the functionality and the utility value of the products that the various brands offer.
Example of IP
applied to a keyboard amplifier
- Trademark: (brand) Casio, Roland, Indosoul
- Design: look, shape, pattern
- Patent: Novel and non-obvious functional invention
Understanding Authorship and Ownership of a Copyrighted work
The many layers of Copyright are like the layers of a cake:
Taking a dance drama for example, there are many moving parts and components related to its copyright. There are 7–8 individual owners and creators in this process of creating this drama and all its components.
Who is the owner in this case?
Every work will have two distinct people involved. The author is the creator and the author need not always be the owner. This means that if this a commissioned work or collaborative work, the owners can vary.
- Example: If a photographer in the studio takes a photo of someone the person who is paying for the service is the owner because it is a commissioned work. Here the photographer is the author and photographed person is the owner.
- Example: If a photographer is taking a photo in a public place then the photographer is the author and the owner of the work.
For all the moving components of the Dance Drama example and in real life, it is IMPERATIVE to clearly state and document who is the author and who is the owner(s).
Definition: Using someone else’s work or ideas without giving proper credit to the author. In US copyright law plagiarism does not have any legal significance, because this is different than formal copyright infringement. In India, plagiarism has significance, it is legally referred to as infringement. Anything that is not consented for use by the author is infringement in India.
Part II: Apply the Law to Case Studies
CASE STUDY 1 | Who owns the IP?
A group of artists (dancer, musician, mridangam player, and violinist) approaches a lawyer with an original production they have created together and want to trademark their group name “The Classical Artists Collective. ”The dancer has choreographed the production, the musician has written lyrics and set the tune, the mridangam player has set the jathis, and the violinist has helped the musician with the tune. They approach a lawyer to protect their work…
Q: What are some factors the lawyer will consider before they determine who has the IP rights to this production?
A: Who brought this group together? Was it an overarching organization or was it organic amongst the members? Who is in charge of the entire collective? While there might be individual owners of different components, when everything comes together this is a culmination of individual moving components. Normally the producer, not the financier, takes the individual components and melds them together to produce the end result. This is normally the default owner, however the artists have the ability to come together and co-own the final product as well. This is best done as a formal legal written document from the get-go rather than leaving it to a last minute task. “When the going is good” its time to create an agreement. If an agreement is not made beforehand at least exchange emails as some form of written documentation of discussion amongst the artists. This is a safety net, not the default way of communication. A legal document is always the way to go!
Q: Can the artists trademark their group name “The Classical Artist Collective”?
A: the name is altogether pretty generic. There is no unique value in any of the individual words that make up the overall name. The group can strengthen the Trademark by not having any words that are descriptive of the good or generic in nature. A unique name is always the way to go.
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CASE STUDY 2 | Plagiarism or Integration?
The group in Case Study 1 asks a graphic designer to help them with social media PR collateral. The designer sees the portfolio of a highly acclaimed artist in the field with lots of followers. She screenshots her favorite posts for inspiration. After studying each screenshot, she exports one of the completed compositions into her design file, changes the color, and presents it for critique in her next review
Q: Is this plagiarism?
A: Yes. This is a direct screenshot therefore a direct copy. Although she changed the color this is not transforming the work or adding any creative or original meaning.
Q: What could the designer have done better in her creative process?
A: Respecting another artist’s boundaries is imperative. These steps can be rectified until this is put into public domain. Once this work is circulated it is copyright infringement. She could have licensed the media from the owner directly. People often get a temporary license that makes use of the copyrighted work legal and fair.
Q: Does not having malicious intentions absolve you from infringement in any way?
A: No this does not, but it might abate the fine you pay
Q: Does uploading to social media alter the copyright infringement?
A: No, social media is a medium of communication and proliferation, the same copyright laws still apply. Usually you are privy to the rules of the social media platform once you consent to upload your work to that platform.
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CASE STUDY 3 | The organizers dilemma
Organizer wants to market the production from Case Study 1 and bring that group of artists to perform under their organization
Q: What, if any, IP considerations should be the organizer think about and discuss with the group of artists?
A: Who is the author and owner of the production? The organizer has already spent time and money commissioning the production and they are paying money to senior artists to perform; therefore they may naturally try to take ownership of all the rights. As a commissioned work, it is in the organizer’s parameters to do so.
For example, and OTT platform like Netflix has original and syndicated content. When it is an original series, Netflix will outsource the production and talent acquisition process however Netflix has commissioned the work and will fight to retain all copyright associated with the final product.
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CASE STUDY 4 | Inspiration or Imitation?
A YouTube artist sees a performance of the production from Case Study 1 and feels “inspired.” The artist records the production when she attends and goes home to choreograph her own piece. She refers to the video for inspiration but copies an entire segment of choreography from the production. She performs it all over and posts it to her YouTube channel, fails to give credit to the original production, and does not obtain permission from the original artist.
Q: What should the YouTube artist have done differently?
A: The protocol for YouTube is to file a “takedown notice” however you need to be the owner to file this notice. YouTube usually has an algorithm that catches most copyrighted work, however this is not always the case. The artist who posted it could have given credit to the original artist (although this does not absolve you from copyright infringement, or this artist could have formally received a licensing agreement from the original artist.
Q: What if student was under the influence of a teacher (or under 18) who would be responsible in a potential IP lawsuit?
A: A minor can still be liable for infringement.
Part III: Learn Practical Takeaways
Considerations Consulting a Lawyer:
- When in doubt, ask a lawyer! Don’t be scared for an initial consultation with a lawyer, most first-time consultations are free/pro-bono!
- Bring copies of what you would like to trademark or copyright when you arrive at a meeting with a lawyer
General Takeaways & Reminders
- Form a contract as early on as possible and explicitly specify the owners and parameters of ownership
- Register a trademark as soon as possible
- When using someone else’s work, see If you can license the work first and foremost. If not, make sure that your use of it is unique and transformative in some way. There must be some value add of your use of the work it cannot be a simple copy and paste!
- Public domain does not excuse the use of original work
- When you are performing a cover of a copyrighted work it does not fall under fair use, this is because it takes away from the viewership and subscribers and following of the original artist
JOIN US FOR OUR NEXT EVENT!
Now that you understand how to define and redefine the workspaces stakeholders in this space operate in, as well as how to protect creative IP, it’s time to learn how to value your work.
“Value Your Work” is the next session of “I’m A Professional Too,” which will take place on Sunday, April 25th, 2021, from 11:00 am-1:00 pm EST/8:30–10:30 pm IST. This will be a panel discussion with artists from the United States and India.
CLICK HERE to reserve your spot!