Animation Guild | We are 839 Digital Magazine
Issue link: https://digital.copcomm.com/i/1399900
BEST PRACTICE TIP • Often creators who start from a place of wanting fans to have unobstructed access to their creative universe end up backpedaling once whole cottage industries of derivative work spring up on Etsy, eBay, and YouTube. While there's no magic language to prevent this, and it doesn't have the legal standing copyright registration does, Moss suggests placing a statement on whichever platforms showcase your work saying, "With regard to fan art and fan fiction, our policy is that we encourage our fan community to create derivative works that feature our IP for noncommercial purposes. However, this permission does not extend to using the IP for any sort of commercial purposes or monetization." WHAT IS FAIR USE? Fair use indicates circumstances where it is legal for someone to make use of another person's creative work. These exceptions allow copyrighted work to be repurposed without permission, but "the first thing you need to know about fair use is: There are no bright-line rules," says Crowell. "It is a fact-specific, case-specific inquiry." It's important to understand that even if you have a good fair use argument when you make your Han Solo-Black Widow mashup, it doesn't mean Disney won't still sue you. At which point the court will consider four factors when determining whether your usage is legal under fair use laws: Amount taken How much of the original did you use? And did you take the "heart" of it or something less consequential? Nature of the original work What kind of work did you take from? Is it journalism/nonfiction or fiction? Works of fiction have more protections than news-related or informative material. Purpose of the derivative piece What did you do with the original IP? Did you add something new or use it in a parody, editorial context, your own fictional context, or for nonprofit or noncommercial purposes? Numerous factors influence this aspect of fair use. Effect on the market Did your derivative work affect the market for the original? Is one now mistaken for the other? Has it impacted the value of the original work negatively because it's competing in the same marketplace? Crowell stresses that "transformative- ness" is a key factor in fair use cases. "The court rewards creators for taking art, even if it's without permission, and transforming it, recasting it, putting it in a context that was not the original context. The more you're doing that, the more likely that it will be seen as fair use. When in doubt: transform." WORKS MADE FOR HIRE Professional relationships that involve works made for hire fall into two categories, and who owns the copyright on the resulting work can vary depending on the context of the relationship. Employer-Employee This dynamic is seemingly straightforward: If the work you create is done as part of the scope of your employment, then your employer automatically owns it. In fact, the law treats that copyrighted material as if it were created by the employer, meaning the company does not even need to name or acknowledge your part in creating it. That said, pay very close attention to the precise contours of the scope of your employment agreement to determine whether anything you create falls out- side of it and thus belongs to you as an individual artist. "For example," says Moss, "if you have been hired to come up with ideas for new animated characters, the company has a pretty good argument that any character idea you come up with while employed will be owned by the company"—especially if you do it on company time or using company equip- ment, supplies, or facilities. If you are hired to work specifically on the company's preexisting properties, however, and not to develop new charac- ters or properties, then the employer will likely not have any claim to any new characters you create on your own time. Keep in mind that there are nuances to all of this. In essence, the broader the scope of your employment, the more cautious you should be. Independent Contractor If an author or artist is hired to create something on a freelance basis, who owns the copyright depends on whether there has been an express written agreement commissioning the work as made for hire and that this work falls into one of nine statutory categories. With a valid contract of that type in place, the hiring party is considered the author and copyright "The court rewards creators for taking art, even if it's without permission, and transforming it, recasting it, putting it in a context that was not the original context. The more you're doing that, the more likely that it will be seen as fair use. When in doubt: transform." —Thomas A. Crowell, Esq. F E AT U R E 26 KEYFRAME