Here is Part III of A Crash Course in Copyright (as it relates to marketing) for Cannabis Entrepreneurs. Again, my disclaimer: I’m not an attorney. This series of articles is simply what I’ve learned and experienced.
How to Legally Gain Copyright From Someone Else
Okay, how does someone legally gain copyright from someone else? If copyright is fixed in the creator, doesn’t that cause problems for people who hire people to create stuff? Number one, employees are deemed to be creating in the act of their employment for the benefit of their employer. The employer would hold the copyright in those instances. You don’t have to worry about that from people that are on your staff doing design, writing, coding, etc.
If you’re working with freelance people who are not your employees, then you have to have a written agreement which includes a “work-for-hire” provision. The work-for-hire provision is the way a creator gives over their copyright in that context to the person who hired them to do it. Let me tell you a true story here. I’ve got a client who is a cannabis doctor. She had a website created years ago and the website was fine for years.
She got in a dispute with the designers that did it for her over the hosting service that they were using. Effectively, they were getting paid to host the site as well. They held the site hostage because they never had a written agreement, which means they owned the website and they weren’t shy about asserting that claim. That’s slimy, right? Even though it’s legally correct and there are other theories where she could have gone after them for that. Eventually they gave up and let her go. Without a work-for-hire agreement with your designer or a freelance writer or a freelance coder, they own their work. Make sure that you get that agreement.
Now, if you’re on the other side of that and you are the writer, the designer, or the freelance coder, you should be a good service provider and make sure that you have work-for-hire provisions in your contract if you’re using yours instead of theirs. If they balk at signing a contract, you just say, “Look, I need to get paid, I need to spell out the terms here. But without this provision you don’t own what you’re paying for.” That usually gets people to fall in line pretty quickly.
The other way that you can use someone else’s copyright is through licensing. For example, in my earlier example of taking a picture from Instagram and posting it elsewhere, let’s say that that same photo was tweeted on Twitter and you Retweet it. You made a copy. Are you guilty? No. The Twitter terms of service require people who post things there to submit to a non-exclusive license so that if you’re using the features of the platform then it’s not deemed to be infringement. In other words, you’re operating pursuant to that license. If you take that photo from the Tweet, download it to your hard drive and then Tweet it as an original Tweet, it’s copyright infringement twice, as we’ve already talked about. Seems strange, but that’s how it works.
Another form of license is Creative Commons. A lot of people post their photographs — used to be on Flickr. Some writing is licensed under Creative Commons. Usually, not always, you can’t use it for commercial use. And if you do, you’ve violated the terms of the license and therefore you’ve committed copyright infringement. Be very careful about that, my Cannabis Entrepreneurs.
In a more sophisticated licensing arrangement, say someone has created a bunch of video content and I want to display it on my site, you could have a license agreement that you negotiate. What’s interesting there is if you violate one of the terms of the contract, you’re guilty of breach of contract not copyright infringement … yet. The terms of that license agreement will dictate what happens there. That’s important, because copyright damages can be extensive. They’re that way to discourage people from blatantly violating the copyright of others.
Finally, copyright can be transferred by assignment. For example, if I want to buy the rights to a book, I would have to get a valid assignment of the copyright in exchange for money. You buy a website, its design, and all its content — same thing. Any time you are requiring this type of asset, make sure that you get a valid assignment of all intellectual property rights, including copyright.
Finally, let’s get down to the real world and the answer that kept coming up on Facebook, which is, “Everyone does it.” That has nothing to do with the law, I’m sorry. In the real world it does happen all the time, and most people don’t get sued for copyright infringement for some of these technical examples of violating someone’s copyright. But that’s not a good reason to go ahead and keep doing it. It’s like grammar, you got to know the rules before you break them. In this context, you need to understand when you’re infringing on copyright so you can assess the actual risk of going ahead and doing it anyway.
Of course, the best rule of thumb would be to avoid infringement at all times, but let me give you a counterintuitive example here. Who would you feel safer infringing upon with a photograph, Disney or a small photographer who also lives in the United States like you do? Who’s more dangerous to you? The small photographer. In fact, there are attorneys out there who specialize in nothing but representing photographers whose work gets taken online because there is software that can find all the instances of that photograph online pretty easily. Then it’s just a matter of sending out letters and wrangling settlements out of people.
Disney, on the other hand, probably doesn’t know and doesn’t care. It’s not worth it to them to get a five grand settlement out of you. That doesn’t matter. They’re probably going to get bad PR if they hassle a little guy. You get my gist. Please, don’t act on that, don’t infringe anyone. I’m saying that’s counterintuitive about the motivations of different levels of players within the world of intellectual property as well as the cannabis industry.
All right, I hope this has helped. I hope it wasn’t too terribly boring. Go forth and do not infringe or let others infringe on you, and keep going.
Ok, so that concludes my series on Crash Course in Copyright (as it relates to marketing) for Cannabis Entrepreneurs. Thanks for reading!