Intellectual Property 101

 

Lesson Info

Final Q&A

Implementation for all of this. We talked about this a little bit earlier with business planning for when it comes to the trademarks. Put it on your yearly calendar for you to decide, is it now the time for me to pull the trigger on this? It's better for you to stay on top of it, and at least revisit the idea as opposed to automatically wipe it off. I have a lot of people who decide, "Oh, I'm not even going to look at it later on.", and then they never come back to it, and when they end up in a sticky situation, it's something that they could have registered. Now, they do have the priority rights like that SnapSpace we talked about, but it's still limited to a geographical area. It's kind of hard for you to come in, use something, common law rights, someone come in and register, you would have a potential action to petition to cancel their mark by claiming you had first use of it, but it doesn't always happen that way, and especially if you're not able to afford an attorney, often time...

s you don't have the proper documents to file, or information provided to the USPTO. So, just keep that in mind, if you're going to use it, you may as well fish or cut bait, and decide to do it now. Copyright registration is, we looked this up last night, it's between 70 to 120 years depending upon the item that is registered. A trademark is perpetual. So, you don't have to worry about re-doing it later on, and the one good thing too is that when you do the registration, there's up to five years where people can petition to cancel, and at five years, you're not scot free, but you are perceived to be the owner, true owner, at that point. I'm trying to think of any misconceptions of copyright. One of our students would like to know what your thoughts are on, and this is sort of general questions that you might have already touched on throughout the whole thing, on the benefits of asserting common law trademark, you would use the TM symbol. What Jude is speaking to is that typically a registered mark only uses the R with the circle, you've seen the SM, that's typically for service mark, and them TM people use for common law rights. You shouldn't use the R in the circle, the registered mark, if you're not an actual registered mark. People do that thinking that they're asserting the common law rights it's actually incorrect. You would be using the TM. You don't have to do either, and actually what is interesting is that there have been times that we have advised individuals not to put the TM on there because you don't necessarily want to tip off somebody else that you're in the process of doing that. Now, it's public record. Anyone who knows how to use the system, they can go find, you can see all of the pending registrations that are out there. You go onto USPTO.gov. That's the system where you guys are going to be doing all your searching to make sure it's not the same, or similar, name, and you can go and see what is currently pending. As far as for that question, to me it doesn't really make a difference. Maybe you're one of those that opted not to do the "dibs", opted not to do the intent to use. You've already gone in commerce, and you have a pending registration, it really is completely up to you. I don't necessarily think you need to. To me, it doesn't have legal weight one way or the other. It's just for the mere use of whatever that mark is. Is it the brand name, is it the logo that you're going to be using. Great. So, a few people are asking about working with logo creation companies. Like Photologo, like Fiverr. What's your best practices for giving them a contract, and making sure that you still hold the rights that you need. So I'm glad you asked this. I actually do a lot of work with some virtual people through Upwork, and there is nothing in their terms that gives me any other intellectual property rights because, if you think about it, the contract privity that we have when I utilized a system like Upwork or Fiverr, it's between me and the website. It's not between me and the person that's doing the work. So, I also put, when I was talking about job description, I put a job offer out there, job listing out there, I put in there, "must be willing to sign X, Y, and Z". So, I would recommend, because I haven't checked the Fiverr, I haven't checked the Photologo, whichever one you're referring to, but I would imagine they don't have anything in there. They're not wanting to play middle-man as far as between the transfer of any intellectual property rights. Take it upon yourself. This is you being on top of you, and knowing your business, and making sure that you do it with the other individual,. And just like I said multiple times, don't wait until it's after created, and you've already paid, and you wasted all that time and energy, and then ask them to sign it. I would off the bat, I know Fiverr is a little different, you can do a job listing, but if you go to hire someone, you can still contact the person, and kind of let them know. I always take the documents, and put it as a PDF. I know I said don't use PDFs, but I'm talking about not like signing here, but I'll do it as a PDF and send to them before I hire them and say, "are you okay with these terms?", and if they are, then we'll go through the whole process, and I'll digitally send them a document. Just because, by default, technically, anybody that I'm using on those systems are independent contractors. By default, they own the rights to whatever they may have created for me. I think we have a question in the back row. I'm not even entirely sure how to phrase it, but can you speak to, is there anything to do in terms of editorial usage, where publications use things, and they either do not credit you, mis-credit you, you just go, "Oh, hey that's mine.", and, "what the heck?" Good question. Alright, so I'm glad you brought this up. So I have been giving you the general rule. What she's speaking to is the fair use exception when it comes to copyright law. There are exceptions carved out. Education is one of the big ones. Educational institutions can utilize your intellectual property, your images, without needing to do, get permissions, or do any attributions, which, by the way, use of attribution does not take you out of copyright infringement, and backing up even further, we need to keep in mind, all of this infringement that we talk about with copyright has to have a commercial use. If someone just rips the image, and they're using it on their personal Facebook page, and they've turned it into a meme, how do you say that? Meh-me? Mee-Mee? Meme. The M-E M-E thing, whatever that is, the graphic. If they're just using it on their personal, that's not really copyright infringement. We're looking at the commercial gain. So what you're talking about with the fair use exception, they're excluded from that, which sucks. Yes. I completely understand, and it's no fun, but there is a list of them in education, and media can sometimes fall under there, that becomes a little sketch because media has commercial advertisements and so forth, but for the most part, fair use. They can utilize it without permission or an attribution. Again, like I said. Another example would be, and I see this a lot with Instagram, I'm going to say it, because I'm pretty sure that they're watching. This happened to me a couple weeks ago. Somebody took one of my images from Instagram, and it was a crap iPhone image, and they re-posted it to their own, and gave me credit, and was like, "thanks for the photo." I'm like, "I didn't freaken' give you a photo. I didn't give you permission, and I didn't hashtag "you have permission"" You know what I mean? Like, I didn't do anything like that, but because it was merely on social media, this company believes that they can just utilize the image, but I know that they're probably misunderstanding to believe, in this case, because it's commercial Instagram, this does not fall under fair use. It's a commercial Instagram because they're seeking to gain clients. They more than likely think, I haven't had time to reach out to them, the cobbler's children have no shoes, and so this is on my list of things to do. That they probably think by captioning it, and tagging me, that that takes them out of copyright infringement. It doesn't. I have a screenshot, and it's still sitting there. So, how many weeks now that's it's been using commercial activity. That cha-ching, pizza for everybody! I'm just kidding, but did that answer your question? I know that it's very difficult when it comes to the fair use stuff. They don't have to caption. I mean, attribute it to you, I mean. I don't know it's like, how many of those do you chase down at this point? The copyright, like people using it commercially, or? Well, sometimes. Because it's, you know, yeah, or again, kind of earlier, like pick your battles between which clients and how many things kind of over the years where they've ticked over, and my answer has usually been with certain clients, like, you know, where they've scammed things, or they've taken them, and they've you know, made them look terrible. Usually my answer has been to send them better versions, and say, "Hey, next time this is how I'd like you to do it"., but where they've been published and printed, It's like, please. It would've been nice. Well, and the thing about that too that you have to consider. So say it's published and printed. Even when people print retractions, no one reads the retractions. What's done is done at that point, and so you kind of have come to this juncture. Especially when it's another business, and this is kind of what I've been wrestling with with this company, is do I automatically fire off this copyright infringement claim, throw gas on the fire, and burn any potential bridge for future working together, or do I take the high road as the law tog, do I take and make an education? Do I try to facilitate it to make it a business relationship? It's kind of the same approach where I was mentioning earlier, like what you say with your clients. Send them a different alternative. In this situation, I probably will not send them a demand letter with an invoice of my commercial marketing license amount. I probably, we'll see, I will say how I feel later on, I probably will reach out to them, in this case, since it's being used commercially, it's not a fair use exception, and determine, okay, can I try to educate them about this, because that's what we were talking about, lifting the industry up, even though we're defending, you can still defend your work, and still lift and educate and see how they respond. If they're jerks about it, game on. If they're nice about it, then I'm probably more than likely going to be like, "okay, can you just not do that in the future?" The unfortunate thing is they do this to a lot of people, so, yes. I don't have a hard set answer. In business, at the end of the day, you need to know what your legal rights are, but then you also have to consider what is best. Can I create a relationship, because people don't know what they don't know, and that's not a defense. There is innocent infringer defense, which I think is complete crap, but the law doesn't ask me how I feel about it, but it does exist. Innocent infringe defenses do exist out there. However, you can negate that a bit. I did say earlier, you don't have to put a watermark on it, or a copyright notice like on your website. That is one argument that I would use as some tried to claim, "I didn't know". Well, first of all, it wasn't your image, you should have known, and if they're registered, that's public notice that there's someone else's work. If you have a notice on there, and that's why you see sometimes on social media profiles, people will put, "copyright such and such" because it is putting individuals looking at those images on notice. They don't have to do them for copyright protections, but it is helpful. And I'm not saying run home and watermark all your images just so you can have a better fighting chance just in case someone decides to lift one of your images, but definitely copyright notice on the website. Educate them and talk to them. That's, I feel like, a really crappy answer, but sometimes you don't have the funds to fight it, you might not have the knowledge to do it, and you don't necessarily want to burn a bridge if they just simply didn't know. Like the example that I gave earlier about it was in the contracts class, it wasn't in this one, correct? Where I had the photographer, and I cropped it because of the Facebook? I'll go ahead and give that real quick for those that are watching. I talked earlier in the print release section about how I had my own photographer who had taken images of my family, he had uploaded it to Facebook, and had a watermark, and he had given me a print license, and had said, "no cropping". Well, this was at the time when Facebook required you to crop. You couldn't choose anything, and it cropped out his watermark, and he called me scathing and upset, and essentially, what happened in the end, was that I no longer refer anybody to him. How old is Olivia? That was eight years ago. Seven years ago. I have never referred anybody to him since that day. Now, had he taken the road of saying, and this was a mistake, I totally and completely accept that I had violated the print release, right? I had blamed Facebook, but whatever, but had he taken the path of saying, "Hey, you know, this is what it said, could you just go back in?" Now, at the same time I had already written in the caption and linked his Facebook page. If I had been him, I would not have acted such like a jerk to a client. Same thing if you're looking at the media. Does it have a fair use exception, or not? Is it an educator? Reach out and talk to them. I love when people reach out to me and say, "Hey, can I share your stuff?" And I don't go through a big whole formal thing of, "Oh here's a license for you to show this to your second grade class". Actually, I did have a college professor who wanted to share one of my blog posts, and I love that they came to me even though he didn't have to. Guess what blog post he wanted to share? The fair use exception. (laughing) But he was trying to talk about copyright, but it opened up the door because then I was able to offer to him in return, I was like, "Do you want me to come talk to them, do you want me to make a video?" I share all that to say, there are, instead of just this whole trite, follow your heart, there are ways that you can expand your business, and I've gotten students and customers out of his class now for our open dialogue about it. (audience member mumbling) There's not. I mean, it's, there's not. I know. It's like what I said earlier with the copyright stuff. You cut the head off of one, and ten more pop up. It is going to be a never ending battle. As much as we can do to protect ourselves, and give us legal teeth for an argument, if shall we ever to defend it, and that is what the best course of action is because it is going to happen. It's more of when, not if. Great. Okay, no problem. This is from Greg Carl, and the question is, what's the latest on the availability to take copyright claims to small claims court? If you happen to know. Small claims, well all small claims vary depending on state of how much is in question, and also you're really looking more at Federal Court because we have federal registration claims, or federal copyright claim. Gotcha. Nice, quick answer. Sorry I couldn't be that clear. I know. So I have a question from Kelly wanted to know, do watermarks protect you at all? So, watermarks again, like I said, are not required. They do protect by putting people on notice that it is your intellectual property, and it can work to be a deterrent. I balance it again, so, how much, intrusive is it to my work because if I'm going to take the path of registering my images, you know, and defending my work, that watermark is low on my list of things to worry about, but it can help. It can help to demonstrate that I was trying to prove to people, or tell people, that it was my work. So I think it's all preferential. I do think that it can deter, I think it can deter people. The only problem with that is people have to have an understanding of copyright law, and most that are going to do that don't, or if they do, they don't care anyways. They're going to remove the watermark. Or just crop it, because apparently I just named myself, like, the biggest hypocrite with my example, but or they're just going to crop it out. Great. So, question from Wynn. One of our regulars here at Creative Live in the studio. How often should we pursue companies taking images that our clients post, and using them without crediting the photographer especially in the interior design industry? Oh my god, okay. There's a story behind that. My email is info@thehalltime.com because I totally want to know, like, what's going on there. That actually has a nice little twist. So, if you guys heard that. This whole time that I've been talking, I've been primarily focused on me taking the image of a client and posting it on my website or social media, but the twist here is that clients are then sharing within their print release, their print license, and sharing on their own, and a company lifting it. There's no difference when it comes to infringement claim because think about the ownership here. Assuming that the photographer is keeping the copyright ownership, which I would imagine it would be, the client is having the license of use to post on their social media, good question, this actually ties over to publicity rights, so, well you say interior design, but there could be people in the photo. Sure. The photographer, assuming that they still retain all the copyright, can force the intellectual property rights of that. If there's people in the photo, the client then has a potential publicity rights claim as well. So both of them, what was the end question on that? I kind of went down a path. The end question was as far as Instagram is concerned, if their clients post the photo, the company Yeah, it doesn't make any difference. It doesn't make any difference. Nope, I mean, if the document signed over, because remember, copyright remains with the person that created it unless they're in the status, or it was signed over, unless the photographer signs over the rights to the client, the photographer will have enforcement copyrights available, and the client will have publicity rights claim against that third party company. Whether it was posted on Instagram, it doesn't matter, their terms do not give anybody else permission to use. It does not allow, we talked about this earlier when you asked about Facebook terms, Facebook terms, Instagram terms are only terms between that social media websites and you. It's not giving any third party, such as interior design, or any other companies the right to use images commercially absent any agreements. I think the biggest thing is, I know this was a lot of information, take it in buckets, look at trademark. Put it into your business plan, and then determine how you can move forward with that. Copyright is the most pressing need that you guys have right now because it's happening all the time. Make a checklist, you might have to watch again because I know I talk really fast, but I wanted to give you all of the information that I could. I mean, they tried, they wanted me to cram in like a year of law school, like, into 90 minutes. So, I apologize, but take the checklist. Please put registration onto your schedule and your calendar and your cost of doing business, because I don't want to have to tell you, it's going to be very hard to seek compensation, but know, there is potential for compensation and claims if you guys take that path.

Understanding how to create and defend your intellectual property is one of the trickiest issues plaguing photographers today. Join Rachel Brenke, TheLawTog®, as she gives you a 101 crash-course to make sure all areas of your business are covered, not just your photographs!

The Brenke Group, LLC, doing business as TheLawTog® (“TheLawTog”) provides an online legal portal to help customers identify business and legal problems commonly encountered by individuals in the photography industry. TheLawTog is not a law firm and does not and will not perform services performed by an attorney. TheLawTog is NOT a substitute for the advice of an attorney. Instead, TheLawTog provides templates and education to individuals who voluntarily chose to prepare their own legal and/or business documents, submit templates to licensed attorneys for modification, and/or for education purposes prior to contacting a licensed attorney.

 
 
 
 

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