Intellectual Property Terminology For Creatives: The Absolute Basics

[Jubal]

For people just starting out doing any sort of creative work, copyright can be confusing. Intellectual property rights in general are a very complex topic, and I'm not a lawyer, but I thought it might be useful to write a very short explainer for anyone confused about the basic terminologies. Any thoughts for how to improve this appreciated!


In general, you have copyright over any creative work you authored. This is sometimes confused with a patent, which protects a technical design, idea, invention or process, or a trademark, which protects a word or symbol as part of a brand. Both of the latter do need to be filed for - copyright doesn't, you automatically have it as a work's author until you sign it away (or unless you signed it away in advance).

This also means that in general you cannot legally use copyrighted works in your own work. In practice, the extent of this is defined by the rights holder and how aggressive they are at enforcing their copyright, but the broad rule is that you can't just take something someone else made and use it if they haven't said you're allowed to do so.

There are three big exceptions to this:

• things under open license
• things in the public domain
• something that is copyrighted, but you have fair use of

An open license of some kind gives you the right to use something under particular terms - maybe you can use it but you have to attribute the author, or you can use it but not for commercial projects or not in some other specific circumstance. The most common set of open licenses are those provided by the Creative Commons organisation, which works to create internationally valid, easy to use licenses for freely shared creative works. Creative commons licenses are often referred to with various shorthands, depending on whether they require attribution of the author, whether they allow commercial use or not, and whether or not they allow adaptation.

The public domain consists of things that cannot be copyrighted, usually because the author has been dead for a long time and the copyright has expired. Once copyright has expired nobody can come back and copyright the same work again (though they may be able to copyright or trademark their particular take on the work). The creative commons also offers a "public domain license", CC-0, which allows you to declare a work public domain. There can be difficulties around reproduction of out of copyright works in some cases: some countries think that for example a photograph of an old painting can be a new work and thus copyrighted, some that it can't, so even when you're using out of copyright material it ideally helps to have some statement that it has been released on public domain terms.

The doctrine of fair use (or fair dealing, in some countries) is significantly more complicated, but covers referencing and using copyrighted material in ways that are legally permissible. Fair use is legally necessary - because people reference trademarked and copyrighted material all the time, and it would be impossible to stop them - but there are few very clear lines as to its use especially as regards things like fanfiction. Some areas tend to be more likely to be considered fair use - for example if one can argue that a use is educational, a parody, or a criticism of the work it is using. Fan works are in the less-than-ideal situation of often existing because the rights holder doesn't enforce their copyright, rather than having proper legal standing.

In your own projects, it's important to know the origin of any materials - textures, sounds, etc - that you're using, to make sure you're not breaching someone's intellectual property rights and therefore aren't risking legal action or other problems. If you can't find the source, don't just assume it's public domain and free to use.

Where should you look for more information on these sorts of issues without having to pay through the nose for pre-emptive legal advice? University libraries may be good sources of information on the precise rules where you are, and if you have any affiliation with them may be able to help you more directly. The website of Creative Commons itself also has a range of useful information. Please do also ask in the comments here if you're having issues and hopefully someone will be able to point you at better resources.

Hopefully this has helped with a few of the basic need-to-knows - if you found it useful, or if there's anything I should add, please do say below.

[The Seamstress]

Definitely useful, thank you!

[dubsartur]

In Canada the relevant legal category is Fair Dealing not Fair Use https://www.lib.sfu.ca/help/academic-integrity/copyright/fair-dealing  University libraries are often good sources of information on intellectual property and text in your jurisdiction.  They may even have someone who can talk to you if you have any connection with the university (and probably hold free public talks on intellectual property).

Some European countries claim that photos of public-domain works of art can be private domain.  Most jurisdictions disagree but it means that (for example) Italian museums are less likely to share their catalogues online than French museums or US museums.

[Jubal]

Thanks, good points and I've duly made some tweaks