Guest post: “The ABCs of Creative Capital Rights”

Creative rights are complicated, but every writer and marketer needs to understand them. I’m happy that my friend, writer Wendy Cook, is letting me share her blog post on this topic.

The ABCs of Creative Capital Rights

By Wendy J. Cook

First, let me make myself perfectly clear: I’m not a lawyer. Before you act on any of my personal ruminations here, do please consult an attorney. (1)

That said, as a creator of creative capital, I think I can offer some good ideas from the front lines on frequently asked questions about its ownership, such as:

(1) How can I safely “borrow” from other people’s work?

(2) Should I protect my own work?

(3) What if I’ve hired a freelance writer?

Learning the Alphabet

Let’s begin with a brief tour of the creative lingo.

• Creative capital is anything you’ve invented (created), that is of some relatively demonstrable value to you and/or others (capital) — whether it’s written content, artwork, a product offering or a process.
• Copyrights protect your words.
• Moral rights protect your artwork.
• Trademarks protect your corporate identities, including logos, taglines and product names.
• Patents protect your products and processes.(2)

Lawyers the world over are likely cringing at my broad strokes here, akin to using a blow torch to light a candle, but it’s how I think about it all, anyway. Now that we’re in the ballpark, let’s touch on the bases.

Borrowing From Others

No matter how convoluted, laws exist to guide us on what we communally consider fair or foul. So “Do Unto Others” remains a great starting point for drawing on other people’s creative capital. Remember your grade school teacher’s response when asked if you could have a hall pass to escape? “Of course you can,” he or she would smirk. “But may you?”

Same thing with copyrights. Just because you can reproduce an article or a picture does not mean you’re allowed to. Whenever reproducing somebody else’s creative capital (beyond brief, properly cited quotes as described below), it’s your responsibility to proactively seek copyright or moral right permissions from the author or artist — which may justifiably involve paying them for it.

An exception to this rule of thumb is if: (1) you briefly quote and properly cite somebody’s content, and (2) you’re adding substantial value of your own, versus simply repackaging somebody else’s book report.

Protecting What’s Yours

In a perfect world, everybody would respect each other’s creative fields, and you’d need never worry about someone unfairly harvesting the fruit of your labors.

Last I checked, it’s not a perfect world. If you’ve got creative capital that you want to protect against theft, here are some ideas.

Copyrights Have You Covered

Copyrights (and I believe moral rights too) are subject to an interesting characteristic. Authors automatically hold copyright to their work … at least until they choose to sell or grant it elsewhere. That’s whether or not you formally register it with the U.S. Copyright Office or display a notice on it, like: “Copyright © 2011, John Doe.”

So why bother with notices or registration? As I understand it, without these, your legal recourse is limited. For example, should someone violate your copyright when notice and/or registration are lacking, you may still be able to achieve a “cease and desist” order to prevent further offense, but you might have trouble collecting on damages done.

Thus, since it’s cheap and easy to do, go ahead and display a copyright notice on most of your work. Formal registration becomes appropriate if we’re talking book-length or for work that you highly value, but it doesn’t seem worth registering every scintillating word you share, unless you’ve got a whole lot of spare time and money you’re looking to get rid of. (If you do, I’ve got some better ideas; call me.)

Trademarks Are a Different Breed

Trademarks have very different rules from copyrights. My understanding is that you must not only formally establish registered trademarks for your logos, taglines and similar corporate identities, but you must also carefully maintain your ownership, lest it be lost through attrition. Protecting your trademarks requires at least these two important steps:

1. Including the “®” symbol in almost all appearances of your trademarked content
2. Regularly monitoring for and aggressively acting on any violations that occur

If you can’t demonstrate that you’ve been diligent on both of these steps, my understanding is that you can lose the ability to protect your trademark — even if you’ve gone through the bother and expense of establishing it to begin with. Ugh.

Bottom line, if it would be a serious blow to your business to lose the rights to your company name and/or particular product names, taglines or similar marks, it may be worth establishing and maintaining trademarks to protect them.

Freelance Writers and Designers

What if you’re working with a service provider to assist you with your corporate communications? As you might expect, the legal transfer of rights can be handled — or mishandled — in all sorts of ways. There are surely enough variations to provide an army of intellectual property lawyers with job security well into the next century. Since there is no universal standard that I’m aware of, whenever you work with creative alliances, it behooves you to ask how they personally handle it and to ensure that their processes work for you.

Personally, I’m fond of the KISS strategy. My practical goal is to transfer the copyrights and moral rights for client-specific projects to the client … once I get paid for doing the work. Brilliant, huh? I contracted a lawyer to help me form a legal agreement that describes this simple goal in copious legal language. Just as good fences make good neighbors, I believe that good formal agreements make for good working relationships. So far, I’m pleased to report my beliefs on that count have held true.

Even though this is one of my longer blog postings, clearly there’s plenty of remaining learning opportunities on the subject of protecting your creative capital and respecting that of others. So I’ll part with a couple of resources I’ve found handy in my own schooling:

• The Law (in Plain English) for Writers, by Leonard Duboff and Bert Krages II. A good book on copyrights and similar issues, from actual lawyers.
• The U.S. Patent and Trademark Office TESS database. A free resource to check on whether a trademark already is owned. But note, TESS is just a rough guide, not replacing formal trademark searches when warranted.

Wendy J. Cook Communications offers writing, editing and presentation services expressly for the fee-only, passive/DFA, Registered Investment Advisor community. By focusing on this niche, Wendy helps these firms effectively communicate with their clients, prospects, media and the general public in print, social media/Web and e-newsletter forums.

(1) Lawyers who specialize in these sorts of things are often referred to as intellectual property (IP) attorneys.