This week would like to wrap up the discussion I started about copyrights and comics work a little more than a month ago with a discussion of the practical considerations relating to copyright. To do this, I will be writing about my own approach to copyrights, in my own work, to serve as an example.
But, as has been the case for the last few weeks, before we get going, I need to get an important disclaimer out of the way.
The Obligatory Caveat
The discussion that follows is intended to provide information only and should not be taken, or relied upon, as legal advice of any kind or in any form. If you have specific questions or concerns relating to copyright, or any other legal issue, I would encourage you to either retain and instruct legal counsel, or avail yourself the legal resources that are available online or in your local area (many of which are free and can be found with Google searches).
To be clear, by providing the following information, I am not providing you with any specific legal advice as it pertains to your specific circumstances, and I am not your barrister, solicitor, lawyer, and/or attorney (though I am sure you are a lovely person).
Finally, I should note that I am a Canadian lawyer and, as such, the information I will be providing in this blog entry will be specifically related to how copyright is recognized and protected in Canada. Much of this will be applicable to US or UK law as well, but it should not be relied upon as gospel for how copyrights are recognized and protected in those jurisdictions (for instance, the registration of a copyright in the US gives you access to certain court costs that would otherwise be unavailable to you, while in Canada you are not required to register a copyright in order to get costs at trial).
Ok, with that bit of tuchus-concealment out of the way, let’s take this train home.
When Does Copyright Matter?
One of the bits of advice that I have seen consistently given to artists (most often musicians) regarding copyright issues is that copyrights are not something they need not worry about until they are earning money from their art.
Respectfully, I would disagree with that sentiment and, instead, suggest that when an artist starts earning money from their art, that is the time when the copyright issues actually matter.
When there is no money involved in art (in that, nobody wants to pay the artist to create the art or buy the art from the artist), then any argument as to the ownership of copyright in that art is largely an intellectual exercise. Apart from any personal satisfaction that the parties may draw from being “right” as to the ownership of the relevant copyright, the result of that argument has no financial consequence on anyone.
However, once there is financial value in that intellectual property (the copyright to that work), this intellectual exercise becomes a meaningful question of ownership of property that has objective value. Since the answer to that question has a specific financial consequence to it, it is the time that people may spend money to contest the ownership of that work (say, in the form of a lawsuit).
As such, I would argue that artists should be considering the copyrights that will arise when they create their works well before such works are made, because it is important to know (or try to know) the answer to the question of ownership before it moves from the realm of an intellectual exercise into the realm of objective, financial value.
Therefore, from my perspective, there is no such thing as “too early” to be thinking about copyrights.
Hell is Other People
Before turning to talk about my own strategies regarding copyrights, it is worth noting that, since the vast majority of the art I produce are the results of solo efforts, written, drawn, coloured, and lettered by me, I rarely have to worry about where the copyright lies in my work.
An obvious exception to this is when I draw characters or situations that are depicted in works that are copyrighted by other persons (fan art), but since most of my pieces are original works that are the result of my own exercise of skill and judgment (however meagre such exercises might be), it means that I have no concern about the answer to the question of ownership and, therefore, I have no need for contracts to determine that answer.
When I create work with, or for, other people, however, I want to be certain as to what that answer might be.
Setting a Clear Path
One of the ways I deal with these copyright issues from the get-go is to have a frank conversation with the people I am working with (or for), to determine exactly what they expect from the project we are undertaking. Do they want to own the work wholesale or do they just want a license to the work? Who is allowed to make money from the work? Will I be able to sell prints of the work? Can I use those works for promotional purposes? What will the stages of this work be? Will there be an approvals stage and, if so, who owns the works that are rejected? What format will the final artwork take (electronic vs. traditional materials)? If this is a joint project, who will own the copyrights in the completed work?
At the end of this conversation, I should have an idea of exactly what the project will consist of, and what our respective obligations will be (what work I have to do and what the other party has to do in return…which is usually to pay me).
Once we have those particulars settled, I will put the particulars of that agreement into a written contract that puts legal meaning to those agreements (or, put more plainly, it gives a detailed answer to the question of ownership).
Now, I recognize that I have a distinct advantage here over most other artists, because I am a lawyer with experience practicing entertainment law, as well as an artist. When I draft these contracts, I am confident that a court would give the same meaning to them that I intend them to have.
However, even if I did not have my legal training and experience, I would still want to have a written agreement as to what our intentions and understandings were as to the copyrights that would vest in the works being created.
To that end, I would likely try to find a lawyer who would help me with that agreement, because there are many contractual pitfalls that non-lawyers can walk into when they either draft their own contracts or use precedents found online, the most dangerous of which are the lack of severability clauses (clauses that allow the contract to remain intact, even if one or more clauses in the contact are found to be unenforceable or void), the lack of “whole agreement” clauses (clauses that say that everything that the parties have agreed to is in the written contract), and the lack of a “choice of law” clause (what law applies to the interpretation of the contract).
That said, some form of written agreement, however deficient, is likely better than no agreement in these circumstances, so if no such lawyer was available, I would simply do my best to write out what we understood the agreement to be and ensure we both sign and date it.
Keeping an Eye on the Nesting Doll
I have mentioned in an earlier blog post how derivative works can be understood as similar to a Russian nesting doll, where the copyrights of other works are contained within them.
With that metaphor in mind, another question I ask before starting a project that will incorporate someone else’s work is whether or not that person actually has the copyrights they claim to have (or, following my metaphor, I ensure there are no smaller “dolls” lurking inside the doll they are offering me).
If the other party confirms that they own (or have licensed) the copyrights to the works that will be incorporated in my works, I include a clause in the contract where they expressly confirm that they own those copyrights.
Further, I include a clause that sets up a remedy for me, if it later turns out they do not actually own those rights, at the time we enter our agreement (you can see the full phrasing of that clause in last week’s post, but the short version is that they have to pay any damages and legal expenses that I incur as a result of defending any copyright claims that may result from their mistake or misrepresentation).
Once the other party signs a contract with that clause in it, I do not spare the nesting doll any further concern, because I am protected from any surprise, smaller dolls that may emerge at a later time.
The Propriety in Ideas (or, rather, the lack thereof)
The final thing that I wanted to mention in connection with my discussion of copyrights is something I have seen fairly often in my dealings with other artists (in particular when dealing with authors), which is the fear that some artists have of someone else stealing their idea for a project.
The problem I see with this is that, sometimes, that fear can lead those artists to act like a person walking down a darkened street with a fortune in their pocket (which is to say, they seem cagey when dealing with anyone they meet who they think may know what’s in their pocket).
In response to this concern, I feel it is worth noting, again, that the copyright laws of Canada, the US, and the UK do not offer any protection of, or ownership in, “ideas” themselves. Such protection and ownership only extends to the expression of those ideas found in creative works.
As such, if someone has an idea for a comic or a children’s book or an illustration, they are right to have a concern that someone else may “steal” that idea and leave the “creator” of the idea without any legal recourse.
However, since copyright laws do protect the expression of ideas (the “works” I have written about in the past month), there appears to be an easy way around this fearful dilemma, which is to simply put those ideas down in a fixed format, by actually writing and/or drawing that work.
This strategy would result in a work that is the expression of those ideas, which would enjoy the full rights and protections that come with a copyrighted work. If someone later “stole” that idea, by copying substantial portions of the work, it would give the creator of the work (the person who had the “idea” first) the grounds to challenge that work, either on the basis that it infringes on the copyrights in the original work (in the case of a blatant copy) or that it is a derivative work that incorporates copyrighted elements of the original work (in the case of something that adopts substantial elements of the original work).
To be clear, this is not to say that this original effort at setting down the idea into a fixed form needs to be perfect (or even pretty), it simply needs to adequately articulate the expression of that idea so that a “stolen” version of that idea could be later recognized as a copy of the original, if it was compared to the original, imperfect work.
Further, I think that this gives a powerful incentive to creators who have a “million dollar idea” to put some actual work into turning those dream project into actual, tangible works of art.
Finally, I think that this strategy would help those would-be creators feel more confident to share their proposed projects with other artists, which would inevitably help them find the creative partners they need to bring those ideas to life in the form of a finished product, and result in more art (and is not more art always a great thing).
This is not to say that this would give the creator of that “idea” an iron-clad defence against the theft of his or her “idea,” but it does provide as much protection to them as the laws of copyright can provide, and that is all that can be expected, at least from the law of copyright.
Here Endeth the Lesson
That brings us to the end this week’s survey of my strategies for dealing with copyright issues in my own work, and the end of my series of blog posts on copyrights and comics.
If you have any questions or concerns regarding the issues I have discussed this week, or in previous entries, please do not hesitate to drop me a line in the comments section below or in a private message, if you are not comfortable posting your questions in a public forum (though, as the saying goes, there is no such thing as a stupid question, apart from the ones that are not asked).
As always, thank you for taking the time to read my thoughts and I hope to see you back in seven days!
Until then, I have some drawing to do.
Yours very truly,
Kevin B. Madison