By Professor Gary Graves, Fullerton College
Michelson IP Educator in Residence,
National Association for Community College Entrepreneurship

What does Disney’s Mickey Mouse, Kehinde Wiley’s Portrait of President Obama painting, Grant Wood’s American Gothic painting, Amy Sherald’s Miss Everything painting, and Jeff Koons’ Balloon Dog sculpture – all have in common? Besides great iconic artworks, they are all examples of intellectual property— things you own that are the products of your mind: a powerful concept and one of the most critical drivers of our economy. Without the ability to protect intellectual property, artists, creators, entrepreneurs, and others would have little incentive to create groundbreaking creations.

Copyright & The Law

Copyright is as old as our country itself. In Article I, Section 8, Clause 8 of the United States Constitution, Congress was granted the authority to issue copyrights to authors of artistic works. It reads, “The Congress shall have the power to promote the progress of science and useful arts by securing for limited times to authors and inventors exclusive rights to their respective writings and discoveries.” That means you have a right and are protected to own original ideas for products, logos, images, and creative works.

Copyright is the most commonly used intellectual property protection tool in business. It is a provision in Title 17 of the U.S. Code that protects creative products. More specifically, the government states that it grants automatic protection to printed works, software, artwork, photos, video, and virtually everything on the internet once it is “fixed in any tangible medium of expression.” Although you can register with the U.S. Copyright Office at www.copyright.gov, you aren’t required, but you’ll find it easier to enforce protection if you do. The duration of protection for a copyrighted item is 70 years. For works created after January 1, 1978, copyright protection will last the creator’s life plus an additional 70 years.

 

Freelancers, Joint Authorship, and Work For Hire

One common issue arises when an employee or freelance artist creates something for his employer or client. Who owns the work? The short answer: it depends. Generally, an employee’s work belongs to the employer, so long as the work was created within the scope of employment.

Alternatively, a freelance project might be a “work made for hire,” a particular kind of work specially defined in the Copyright Act. A “work made for hire” must be “a work specially ordered or commissioned for use.” The creator, or “author,” of the work, for only the purposes of copyright law, is the commissioner of the work. All the rights associated with the work immediately belong to the commissioner, not the freelancer or actual creator. Suppose the work is not a “work made for hire” under the Copyright Act’s precise definition. In that case, the commissioner must obtain a transfer of ownership from the creator. This means that the creator retains the work’s copyright: the right to distribute, the right to reproduce, the right to perform publicly, and others. To obtain those rights, the commissioner must get a transfer of ownership. 

The Copyright Act requires this transaction to be in writing signed by the author. Thus, an oral transfer is not possible. Of course, it follows that the artist can revoke an implied license, or can otherwise cure any ambiguity, by expressly declining permission to use the artist’s work.” Given these considerations, a freelance artist has significant leverage where the artist never transferred ownership of the work to the client in writing, and a dispute later arises. Intellectual property can be tricky, and artists and clients should work out ownership beforehand, in writing. As a practical point, it never benefits a business relationship to purposely arrange the relationship to leave a copyright “trap” that could spring if the relationship goes south. Therefore, as a business practice, it is best to spell out ownership in a written, signed contract beforehand so that all parties understand and can rely on their ownership interests in the work to be created under the relationship.

This post has reviewed some common intellectual property issues that concern artists, creators, and entrepreneurs. Automatic copyrights provide a powerful tool for an artist but should not take the place of expert consultation by an intellectual property attorney. For the non-artist, using pictures, images of others without written releases can also cause real financial problems. Knowing your rights can help you, the artist, and the entrepreneur feel secure and direct your energies to what matters: your creation.

 

Registering a Claim

On a personal note, I’d like to share with you my copyright experience.  In 2020, I wrote and published a children’s book called “Chippy the Cheetah rides 545 miles from San Francisco to Los Angeles”  It is a cute story about three things I love, Cycling, The AIDS Lifecycle, and Cheetahs. The entire copyright process took less than 10 minutes.  Here is how I did it — I pointed my browser to the www.copyright.gov portal and set up my account. From the HOME page, I clicked on “Literary Works,” then “Register A Literary Work.”  From the left side of my screen, I clicked on “Register A New Claim,” then I clicked “Start Registration.”  I had to provide the ISBN number, title of my book, and some personal information. I could have registered this work before it was published too. The second step was to pay the U.S. Copyright Office.  Since this was an online registration it was $45. The last step was to upload a PDF copy of my book. That was it. 10 minutes. Easy Peasy!  And now, I have the extra protection beyond the automatic copyright protection to secure my character, story and create future stories.

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Gary will be speaking about the ways to integrate intellectual property into curriculum during a rapid session at the upcoming 2021 California Entrepreneurship Educators Conference on Thurs., April 15th.

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The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.