Animation Guild | We are 839 Digital Magazine
Issue link: https://digital.copcomm.com/i/1399900
D E PA R T M E N T 27 KEYFRAME holder of the work; without it, the creator retains copyright. There are nuances to this depending on whether the work was based on the hiring party's IP and what either party does with the work afterward. BEST PRACTICE TIPS • It's best to avoid using company equipment on the sly. This is one of the factors a court might review to determine whether an employee has a right to a creation. • Freelancers hired in California have an additional negotiating tool in that state law requires the hiring party to treat an independent contractor in a work made for hire situation as an employee and not a freelancer. If you want to retain copyright, you could try using this to pressure the hiring party to forego the work for hire agreement. • Depending on the type of project, when facing a work for hire demand from a potential client, consider making the fee for your work commensurate with the potential loss of copyright. Offer a choice between a full buy-out cost and a lower fee that includes an exclusive license for just a few years after which you regain copyright. TAKING ACTION AGAINST INFRINGEMENT If you believe your copyrighted work has been infringed upon and you want to act on it, your main options are a takedown notice, a cease-and-desist letter, and a lawsuit. "But you really have to think about not just your legal rights but how it looks in the court of public opinion," says Moss. "What's the PR backlash going to be? You want to make sure that you're doing a cost-benefit analysis and seeing the big picture, because if you're just starting out and you've got a burgeoning fanbase, you want to have those soldiers helping to spread the word for you." BEST PRACTICE TIPS • If you decide to send a cease-and- desist letter, keep in mind that it can be immediately posted online. Use tempered, appreciative language that acknowledges the fan's love of your IP while stressing that monetizing it in this way dilutes your copyrights and trademarks. "You're just trying to make these people understand that there are two sides of this, and usually that works," says Moss. • For cease-and-desist letters, it's unwise to use a template you find online. These letters are most effective when they are tailored to the specific facts and laws at issue, so legal counsel is recommended. (See resources for volunteer arts attorneys.) • If your infringed material is posted on a third-party-uploaded platform, take advantage of the DMCA's Notice-and- Takedown System (copyright.gov/512/), which allows you to compel companies such as YouTube or Etsy to remove or block access to the disputed material quickly. This way you avoid direct contact with the offender and don't risk coming off as aggressive or heavy- handed. Even better, you do not need a copyright registration to engage the DMCA takedown process. This article is for informational purposes only and does not constitute legal advice. RESOURCES THE COPYRIGHT MYTH PROJECT: https://copyrightlately.com/the-copyright-myth-project/ LINDA JOY KATTWINKEL, ESQ.'S LEGALITIES COLUMN: www.owe.com/resources/legalities/ VOLUNTEER LAWYERS FOR THE ARTS: https://law-arts.org/national-vla-directory FALL 2021 27 THE POCKET LAWYER FOR COMIC BOOK CREATORS BY THOMAS A. CROWELL