Content marketing is now a critical tool for growing your business. Brute force strategies are losing ground as consumers increasingly expect to connect to brands in more meaningful ways. This trend is reinforced by socio-technological changes, like the rise of social media influencers and evolving search engine optimization (SEO) tactics. Thus, traditional players—like publishers or digital media companies—are no longer the only ones with an interest in protecting creative content. In today’s digital economy, every business needs to be a content-focused business.
The problem with this new reality is that few people understand what it means to protect their content (or if their content is even worth protecting) from a legal perspective. The critical area of law that helps to answer those questions is copyright law, which is widely misunderstood. With so much value concentrated in copyright-protected works, every business leader needs a basic understanding of copyright protections to ensure they can triage issues that come up.
This article is the first in a series that briefly summarizes some key issues around protecting creative content. Of course, these issues can get very complicated very quickly, but this basic information will help you understand some copyright fundamentals and avoid common pitfalls.
Today’s topic: what does it mean to “protect” rights in creative content?
What is Content “Protection”?
Everyone can see that content is not like some physical object that can be protected by simply locking it down (at least if you have any intent to use it). Content is an example of what economists call a “quasi-public good,” because it is physically non-excludable and can be copied at zero marginal costs. In this sense, a single content piece can show up in different copies, but it’s essence is ultimately an abstract thing, which is fully depicted only in the minds of its audience. This type of intangible thing is what the law may protect as “intellectual property”.
The law protects certain intellectual property through specified intellectual property rights. The law must specify these rights, because their intangible objects don’t exist in the physical world. Their boundaries are (at best) fuzzy and they have no meaning outside human-created mental concepts.
There’s different types of legally-protected intellectual property rights (like, patent rights and trademark rights), but the one that’s most important for this conversation is the copyright. Copyrights are basically the exclusive control someone has over the copying (or other defined use) of creative works of authorship (or just “works” for short). This means a copyright holder can stop others from using the covered work (such as a picture, song, or video) in certain ways. The copyright holder does so through a legal process like litigation, assuming certain conditions are met.
So, when lawyers talk about protecting creative content and other works, they mean laying the foundation for the copyright “owner” to legally stop another person from using the work in an improper way (what the law calls “infringement”). Unless the alleged infringer complies voluntarily or there’s some technical means of stopping the alleged infringement, the owner will have to enforce her copyrights in the works through litigation.
Enforcing copyrights through litigation is not only potentially expensive, but it may not be available unless the owner can show (among other things):
the work is subject to copyright protection (for example, it’s not in the public domain),
she holds the copyright (for example, it’s her original creation or she has an exclusive license from the true owner), and
she’s taken the procedural steps needed to file a lawsuit (usually registering the copyrights with the U.S. Copyright Office).
Without the ability to show these things, someone claiming to have copyrights in a work will have a difficult time stopping others from using it.
That’s the reason why it’s so important to do the work on the front end to protect your business’s valuable content. I’ll discuss these topics more in follow-up posts, but here’s a few general tips to get started:
Keep track of how content is created, including what individuals work on it and what background materials are used;
If those individuals aren’t W-2 employees of the to-be owner, you may need a written copyright assignment or (in limited cases) a work-made-for-hire agreement;
If background materials are licensed from others, keep a copy of the license that allows use of those materials to create derivative works;
If it’s worth it, register copyrights with the US Copyright Office; and
If the content is especially valuable to your business (say because you license it to third parties as part of your business model), consider using a third-party monitoring services provider that will keep an eye out for