1. Copyright & The Artist Jonathan LA Phillips Shay Kepple Phillips, Ltd. 456 Fulton St., Ste. 255 Peoria, Illinois 61602 309.494.6155 jphillips@skplawyers.com jphillips@skplawyers.com creativecommons|attribution-noncommercial-sharealike 3.0

2. Thanks to  Peoria Magazines  Arts Partners of Central Illinois  StartUp Peoria

3. Intellectual Property  As opposed to real property and personalty  Patents – Useful inventions  Trademarks – Indicators of the source of goods  Trade secrets – Secrets unknown to competition  Copyrights – Expressions of ideas

4. History  U.S. Constitution, Article I, Section 8:  Congress shall have the power... To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.  Unanimously approved.  Previously encouraged as part of the Committee under the Articles of Confederation.  Letters from T. Jefferson to J. Madison suggesting inclusion in first amendments.

5. Why the History Lesson?  Fundamental principal to allow artists to make a living  Artists have expressions of ideas, not a physical product, thus they sell rights affiliated with those expressions  How bad would writers have it if they had to write out every book?  The historical background explains why it is okay to exploit your rights, even if you never have before  I will be suggesting what you could do to maximize revenue. I am not necessarily telling you that you have or should do so.

6. Why do we have IP rights?  The basis for intellectual property is to help the country, not individuals. Incentivize R&D or creativity and prevent consumer confusion.  Intellectual Property has become one of the most valuable assets of today’s business.  A major factor in securing capital.  May not be important for the artist in the classical sense, but as things progress into the information age, very important.

7. Why Copyrights with Artists?  Not only IP protection  If a new way of performing a task – patent  Your business name – trademark  Secret sauce to your art – trade secret  Most closely tied to the artist  This is how they make a living  Selling these rights is how you make money, not selling objects  A “bundle of sticks” which you can sell individual twigs

8. What is copyright?  Protects the expression of an idea, not the idea  The idea is that of an economic theory, the expression is the journal article. Others can write about that theory, just not use the way you expressed it.  Once fixed, now creates a set of exclusive rights for the creator  Modicum of creativity, but no sweat of the brow doctrine  Duplicate, develop derivative works, distribute, perform publicly

9. What is not protected?  Fonts  Useful articles  Blank forms  Titles, band names, slogans, domain names  Ingredient lists  No moral rights in the USA

10. Who owns the copyright?  Fundamental question. If you don’t have rights, you can’t exploit them.  Vests in author  Works for hire  Community for Non-Violence v. Reid  Employee? Done within scope of employment?  Commissioned? Has own tools? Makes own rules?  Joint Works  Joint ownership

11. How do you get protection?  Simply fix the work  Pen to paper  Paint to canvas  Save copy to Hard Drive  Record to tape, drive, or whatever.  No longer have to place ©  Berne Convention, amended the 1976 Copyright Act in 1989  Entered into by nearly all the world

12. Should you register?  Not necessary  Prima Facia evidence of valid copyright  Statutory damages & attorney’s fees  Relatively cheap  “Poor man’s copyright”  Has been judicially recognized, but doesn’t show who wrote anything or if it is original.

13. Rights “Bundle of Sticks”  To make copies  To import or export  To create derivative works  To sell or assign these rights  To publicly display  To transmit or display by radio or video We monetize these rights to make money

14. Monetization Freelancers can sell rights they automatically own. Copies – what most people think of  For example: You sell a painting or website  Re-sell copies or code  Prevent client or customer from doing the same  Or, you can exploit the fact you know about these rights, and sell them as well

15. Monetization (cont.)  Sculpture  May sell the right to display at location A, but not location B  May sell right to take molds, or may not  Photograph  Easily duplicated. Right for copies, especially on the internet  Import/Export  One easy way to monetize is sell different rights in different countries.  Berne Convention.

16. Summary of Rights  Provided by forefathers  What are the rights  Determine if you own them  If you do, determine how you wish to chop them up  Sell them

17. Copyright Infringement  Infringement occurs whenever you exercise one of those rights without permission  Copying a painting  Changing code  Publicly displaying a sculpture  Doesn’t matter if there is no profit  Substantial Similarity + Access

18. Avoiding Infringement  Copyright lasts a very long time  Fair Use is a tough, but not impossible, sell  The internet is dangerous. Very dangerous.  DMCA Compliance

19. Copyright “trolls”  Trolls or not?  Troll is pejorative term for an entity exploiting rights to create a separate revenue stream  Sometimes buying rights just to sue/settle, sometimes creating a new revenue stream  E.g. Righthaven v. Malibu Media or Getty Images.  Usually lawyer driven  Risks are high, if you infringe, you are more likely to be caught.  Focus on small business.

20. Exceptions  Fundamental Conflict with First Amendment  First sale doctrine (§109)  Fair use (§107)  Parody (Campbell v. Acuff-Rose Music, Inc.)  Extent

21. Questions?  InterBusiness Issues Article  http://www.peoriamagazines.com/ibi/2013/oct/copyright- and-artist http://www.peoriamagazines.com/ibi/2013/oct/copyright- and-artist  Feel free to email me at jphillips@skplawyers.comjphillips@skplawyers.com