Creators and artists should understand the intricacies of copyright and trademark law and strategy to avoid pitfalls and navigate the complicated legal and business aspects of creative industries.
By Justin Chapman
Intellectual property experts told students from Historically Black Colleges and Universities (HBCUs) in a recent webinar that creators and artists should understand the intricacies of copyright and trademark law and strategy to avoid pitfalls and navigate the complicated legal and business aspects of creative industries.
The event, “Ask Me Anything about IP for Creators: Music & Entertainment,” was hosted by the HBCU IP Futures Collaborative, a program of the Michelson Institute for Intellectual Property. The discussion featured Kristine Mbadugha, Independent Music Partnerships Manager at YouTube Music, and Kevin Greene, the John J. Schumacher Chair and Professor of Law at Southwestern Law School, and was moderated by Jelani Odlum, Senior Program Manager at Michelson 20MM Foundation.
Mbadugha laid out the fundamentals and purpose of IP: to create a framework to “incentivize creation to share publicly with other people to further inspire people to create more things.”
Professor Greene said IP is separated into three different categories. Copyright covers creative works, movies, books, songs, hip hop, dance, etc. Trademark is about protecting names and symbols: how companies brand themselves, how they market themselves, how people know who they are. And celebrity publicity rights give famous people the ability to control their image.
“All of those things can come into play when you’re posting online,” Professor Greene said, adding that people need to be careful. “There’s a mythology that if something’s online, you can use it. And that simply isn’t true. You can run into trouble unless you actually get permission to post things. We see that all the time, by the way. I’m dealing with a case now where this poor woman posted a picture of a cake topper, but it was based on a cartoon character that was copyrighted. And they came down on her and a whole bunch of other people like a ton of bricks, asking for $150,000, which is the maximum you could get under statutory damages. They’re not going to get that, but it’s just terribly frightening to receive that letter because of something you did online.”
Mbadugha addressed the question of who owns video content posted to YouTube, TikTok, and Instagram, which she said is not as straightforward as it may seem.
“If you post it or if you upload it, theoretically, you are considered to have created something and therefore are the creator. Generally how copyright laws are governed, you have inherent rights upon creation or copyrights to what you post, ” she said, “but not necessarily if you’re posting/uploading content that you did not create yourself and you don’t own in part or as a whole. So it depends. Prime example: if an artist releases a music video with their original song and then a YouTuber creates a reaction video with snippets of that music video playing in between reactions, they may own the new work of the reaction video, but they don’t own the snippets playing in between their original work (the reaction commentary). This then gets into the world of copyright clearance and licensing. It gets a little tricky.”
IP is separated into three different categories. Copyright covers creative works, movies, books, songs, hip hop, dance, etc. Trademark is about protecting names and symbols: how companies brand themselves, how they market themselves, how people know who they are. And celebrity publicity rights give famous people the ability to control their image.
Professor Greene said people also must be careful on other projects such as films.
“How many times have I seen independent filmmakers start a project, bring in the producer, the director, and the cinematographer, and they never have anybody sign anything,” he said. “The rule under copyright law is, the guy or the gal who filmed the film is the copyright owner in the absence of any agreements otherwise, and they have to fight with that person to get their film. I’ve seen that numerous times.”
He strongly encouraged aspiring filmmakers to enact “work made for hire” agreements, which specify someone’s role on a project, be it a director or a cinematographer or a music director or whatever the position may be.
“It has to say explicitly that it’s a work made for hire, and it has to be signed by the person who’s transferring or conveying those rights,” he said. “If it doesn’t do those things, it’s no good. And people don’t realize that either. It has to be in writing and it’s got to be signed for it to be a working agreement. At that point, the person who has commissioned the work is the owner of the work.”
NFTs, or non-fungible tokens, were another topic of interest on the call. What is an NFT? Is it the same as a copyright?
“NFTs, this hot new commodity, are for unique certificates of authenticity for a digital asset, a song, an art piece, or even for real estate,” Mbadugha said. “They can represent real and intangible property as well, and they are embodied within blockchain. Other than purchasing the NFT itself, the purchaser is not then the copyright owner, unless that’s specifically addressed within the terms and conditions of the NFT provider or the terms and conditions of the sale. But typically, similar to the real world, if you are going to buy a Monet or you’re going to buy a piece of art, you are not the copyright owner of this Monet, you own the rights to display the art that you purchased.”
She added that she has heard horror stories of people purchasing NFTs for music and then recording the music and sharing it with a lot of other people, which defeats the purpose of the NFT because it’s supposed to be a unique asset that is distinct to that specific token that cannot be duplicated in any other form. She stressed that NFTs are not copyrights, but rather another good where you can convey copyrights to or you can sell or express your creation.
She encouraged participants to register their work with the U.S. Copyright Office, which affords additional legal protections.
“Once you create the work, you inherently have rights to that work, which is opposite from a trademark,” she said. “Once you begin to use the mark in commerce that pertains to the good or the service that you’re providing, that’s when your trademark rights begin. And additionally, you can register your trademark with the U.S. Patent and Trademark Office to afford you those additional protections.”
“If maintaining your copyright is the most important thing to you, then the independent route of going through a distribution company would be your best bet for getting your music on streaming services.”
—Kristine Mbadugha
Professor Greene agreed that copyright and trademark registrations are crucial.
“All of us lawyers who grew up old school, we don’t do deals without registrations,” he said. “Any kind of deal: movie deal, music deal. If we’re doing a deal, we want to see a copyright registration in hand. Without it, you’re not considered serious in the transactional world and you can’t even get into federal court. No one’s going to want to buy your work from a business perspective or even license your work if they don’t have that security that they can then sue or enforce on a federal level for that work.”
One participant asked about how to go about obtaining permission to use samples of songs from big name musicians. Mbadugha and Professor Greene both agreed: first and foremost, you’ll need a lot of money.
“Sampling is almost encouraged in the hip hop world, but to obtain a sample of a major recording it’s going to require a lot of money because you are basically requesting contractual rights to two areas, the publishing and the recording itself,” Mbadugha said. “These aren’t cheap, because, at least within the publishing world, you’ve got several copyright holders, and everyone wants a piece of the pie, in addition to the publishing company that owns the rights. So in addition to maybe like an upfront fee that they want, they probably want a back end royalty fee or something like that. Then you have to go identify the label that owns the recording, reach out to the company or the department that handles music clearance, and submit a request. By the time you get the sample, you’re out thousands of dollars before you even put the song on the market, so you have to determine whether using the sample is really worth it.”
Professor Greene added that the way copyright law is set up has discouraged people from sampling music.
“Copyright law impacts how African Americans produce their culture, and unfortunately, a lot of times in a negative way,” he said. “Sampling can be a highly creative and transformative process. The law doesn’t see it that way. The law sees sampling as copyright infringement.”
Mbadugha spoke about how an artist should go about distributing their work to the general public to platforms such as Spotify, YouTube, Apple Music, Amazon, and other “digital service providers” (DSPs) through distributors such as United Masters, CdBaby, and Tunecore. She said it’s easier now than ever to be an independent artist and to make money without a record deal from a major label by establishing an agreement with a distribution company, which offers a certain degree of flexibility.
“If maintaining your copyright is the most important thing to you, then the independent route of going through a distribution company would be your best bet for getting your music on streaming services,” she said, adding that being independent is not for everybody. “Some people want to take the record deal, get the advance, make one or two hits, and then move on with their life.”
“Copyright law impacts how African Americans produce their culture, and unfortunately, a lot of times in a negative way,” he said. “Sampling can be a highly creative and transformative process. The law doesn’t see it that way. The law sees sampling as copyright infringement.”
—Professor Kevin Greene
Mbadugha and Professor Greene agreed that the music industry is crowded and competitive, and very difficult to break into. They both recommended that artists develop their strategy and endgame on the front end and be realistic about expectations. They suggested diversifying your brand and branching out beyond music or whatever your field happens to be.
“You see it all the time, people making smart pivots,” Mbadugha said. “The line is becoming blurred in terms of artists, creators, creator artists, and so building up your brand and a name for yourself so you can diversify your offerings not just in music but in having a makeup line, having a fashion line,” and other creative options to expand your reach and profitability.
Check out these other IP resources compiled by Michelson Institute for Intellectual Property:
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The IP for Creatives Online blog series
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Thinking of Buying or Minting an NFT? Here’s What You Need to Know (LA Magazine)
The HBCU IP Futures Collaborative, powered by Michelson IP, is a new community of practice committed to empowering all future entrepreneurs and innovators with education on intellectual property rights and strategy. Intellectual property refers to intangible creations of the mind that gain protection through patents, copyright, trademarks and trade secrets. In today’s knowledge economy, it’s critical for students to understand how to capture the value of their ideas by leveraging IP rights.
The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.
