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Know Your Rights! A Checklist for Rights Management in Creative Projects

We get calls all the time – “Can you make us a video and use that Aerosmith song?” or “We really like the music in that new Apple commercial – we can use that, right?” – Wrong! Luckily, we have rights to an extensive music library, where we can find something to fit the bill. To help us learn more about the topic we asked Sharon Toerek, a marketing law and intellectual property lawyer with a nationwide practice focusing on the creative services industry, to help. Be sure to check out her website – and take a look at what she has to say about knowing your rights.

Guest blogging content by: Sharon Toerek, Licata & Toerek

Rights management is a key business affairs issue for any creative services firm. Managing intellectual property rights in a creative project efficiently is crucial to delivering value to clients, and is easier to accomplish if you take a few proactive steps in the beginning of the workflow process.

First, a quick review of the rights about which creatives and their clients are concerned:

  • Copyright – a set of rights a creator has in any completed creative work, including the rights to copy, modify, or sell the work. Most of the time, the term “rights,” used in the marketing world, means copyright.
  • Ownership vs. License – ownership of copyright means just that – you own all rights for all uses of the work, forever. Anything less than that – whether limited by time, geography, or type of use – is likely a license of rights.
  • Trademarks – creative work can sometimes be subject to copyright protection and limitations, as well as serve as a trademark to identify a client’s products or services. Both are intellectual property rights. It’s important to know which rights are in play.

Whenever I discuss this with my clients in the marketing and creative worlds, I like to use the metaphor of a patchwork quilt. Why? Ultimately, the finished product at the end of any creative project includes a “patchwork” of intellectual property rights contributed by any number of parties – the marketing agency, third party contributors like video producers, web developers, or photographers, freelance workers who are independent contractors for hire, and, sometimes, the client. The goal is to stitch the rights together so that they all end up in their proper places, owned by the right party.

How to best accomplish this? What follows is a checklist of questions and issues to consider, along with related action steps.

  1. Did a freelancer create or contribute to the work? U.S. copyright law vests copyright in the creator unless there is a written agreement that says otherwise. This is crucial in the age of freelancers and “virtual agencies.” If a freelancer (anyone not on your actual payroll) created or contributed to the work product, they own the rights to their work – not you. Not your client. Even if you’ve paid them. Avoid this problem by getting a written work-for-hire agreement up front, or at least a written assignment of all rights after completion.
  2. Did any third party create or contribute to the work? Similar to the scenario of the freelance creator, you need a solid contract with all third party professionals who will contribute to the finished creative project, and that contract needs to provide for the transfer of rights in contributed work to you or the “end-owner” (the client), and the conditions under which those rights will transfer, such as upon payment receipt.
  3. Are there any restrictions or limitations of use on the work? If you have obtained license rights to third party work, such as music or stock photography, what are the limitations of time, geography, or type of use? When do the rights expire, if they do? What happens if you want to use the work for another project – do the rights cover that use? Review your license and terms of conditions language in these circumstances, and use a good calendaring or docketing system so that you are on top of rights renewals.
  4. Did the client receive the rights to completed work? In the rush to complete a project and move on to the next revenue-producing opportunity, creatives frequently forget to take the step of documenting the transfer of rights in completed works to their clients. The most efficient way to handle this is to address it in the client services agreement (and tie the transfer to receipt of payment), but if you haven’t done so a written assignment of the completed work resolves the issue. No creative firm wants to deal with an unhappy client who learns it does not own rights to the work for which it has paid.

A proactive rights management system saves time and money for creative firms and their clients.