Check the USPTO Database Before You Brand

Fake Brands (Weird News No. 4) by "Caveman Chuck" Coker from Flickr (Creative Commons License)

Fake Brands (Weird News No. 4) by “Caveman Chuck” Coker from Flickr (Creative Commons License)

I asked my friends who work in marketing, who create campaigns and brands for a living, whether they check the U.S. Patent and Trademark Office (USPTO) database before finalizing a project for a client. I was surprised when all of them said, “No.”  To me, this would be an obvious step in the brainstorming or idea development process.

Let’s go over a little bit about trademarks. A trademark is the name, slogan, logo, etc. you put on your company or products to differentiate them from your competition. A trademark has two components – the mark itself and your product or service. That’s why it’s permissible for two unrelated companies to have similar names – like Delta Faucets and Delta Airlines. You can’t put a trademark on your company or product that is so similar to your competition that consumers are going to be confused about what they’re buying.

If you create a brand but don’t register it with the USPTO, you only get common law protection for it which extends only as far as your geographic market. You also risk being in the Burger King situation where you could be limited in your ability to expand if someone registers your trademark after you’ve started using it.

When a company registers their trademark, they get the exclusive right to use their mark on their category of goods and services everywhere in the United States. No one can enter the marketplace with a confusingly similar name on similar products or services, even if they do it in a geographic area where the trademark owner isn’t doing business. They can send you a letter demanding that you rebrand or sue you for infringement. This happened to a friend of mine who had a dog training business that had a similar name to a dog trainer who lived across the country. Since the other guy registered his trademark for dog training, he had the authority to make my friend change her business’ name.

The USPTO trademark database isn’t that hard to use if you’re only looking up words. When you are researching potential names and slogans, make sure you look up various spellings of the word(s) and watch out for the word you want in other languages. It’s a good idea to verify with a trademark that the name or slogan you want as your trademark is available. You don’t want to invest a lot of time, money, and energy in creating a brand that you can’t have. I’ve worked with too many companies who have had to rebrand their company or a product because they got a cease and desist letter from someone who had registered the name.

I also made a video about the importance of checking the USPTO database when selecting a brand.

I’m also a huge advocate of registering the trademark in your blog because if someone else takes your name, it can essentially shut down your site. If you want to chat more about trademarks, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

The Real Cost of a Social Media Misstep

Money by Andrew Magill from Flickr (Creative Commons License)

Money by Andrew Magill from Flickr (Creative Commons License)

I was talking with some non-lawyer entrepreneurs lately, and I asked them what they thought would be the worst case scenario if their company broke the law via their social media, and they both responded that they would have to take responsibility for their mistake, apologize, and do some damage control. While I appreciate that these business owners appeared to have integrity and good intentions, I internally cringed that they both assumed that saying, “I’m sorry,” should be enough to fix a problem.

I want to share some numbers for the costs a business could easily face if they violate a law with their online posts.

Trademark Infringement – Cost of Rebranding
Think about how much time and money you’ve spent selecting the name for your business or product, your logos, your slogans, your domain, and your website. Now, how would you feel if you had to do it all again? That’s what could happen if you select a name for your business or product that’s already been registered by someone else in your industry. In the best case scenario, they’ll send a cease and desist letter and demand that you rebrand. In the worst case scenario, they’ll sue you for infringement, and you could be spending tens of thousands of dollars in legal fees and fines.

This is why I suggest companies check the U.S. Patent and Trademark Database for registered trademarks to verify the name or slogan they want to use hasn’t been claimed by someone else.   I’m also an advocate of registering your trademark as soon as you can afford it, so no one can restrict your use of your own name or steal it from you.

Illegal Social Media Policy – at least $10,000
Every company needs a social media policy, but employers need to understand that a federal law called the National Labor Relations Act (NLRA) that protect union activities also apply to employees talking about their work – even in public online forums. If you fire an employee for violating the company social media policy and it turns out your policy violates the NLRA, you could be ordered by the National Labor Relations Board (NLRB) to pay the ex-employee back wages, damages, and offer them their job back. My friend who works on these cases says if you have to pay the ex-employee $10,000, you got off easy.

Copyright Infringement – $150,000 per Work Copied
Many business owners don’t understand that they can’t use any image they find via a Google Image search. There are even marketing “professionals” who will tell you that you can use any image you find online as long as you give an attribution and a link to the original. Both of these are excellent ways to commit copyright infringement. And photographers are becoming more savvy about protecting their rights so if you use their work they may send you a bill or a lawsuit instead of a cease and desist letter or a takedown notice. In the worst case scenario, you may face a lawsuit for $150,000 per image you used without permission.

Be careful if you outsource your content creation that your contracts clear state that the writer or artist who creates your content also indemnifies you if you are ever accused of copyright infringement because of something they created for your site or posted to your social media.

Defamation – $2,500,000
Defamation generally requires making a false statement about a person to a third party that hurts the person’s reputation. When I do talks about social media horror stories, I talk about a case where a blogger was sued for defamation because of one blog post and was ordered to pay him $2.5 million. 1 blog post. $2.5 million. (The case is currently up on appeal but I don’t think it looks good for her.) This is when little words matter because it’s easy to think you’re stating an opinion but your phrasing creates a statement of a fact – and if it’s a lie, it could be defamatory. Think before you post and check your sources.

ruthcover smallerPlease note, these numbers do not include legal fees you could face in addition to damages if you’re sued because of your social media posts. The legal issues listed above only scratches the surface of what wrongs a person or company can commit online. The good news is most of these problems are preventable with education and diligence. I strongly recommend you stay abreast of what laws apply to your social media postings and developments in this area of law.

If you need a legal resource for laymen on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to blogging and social media. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How the Digital Millennium Copyright Act (DMCA) Works

Hueco Tanks Lightening Storm by Dana Le from Flickr (Creative Commons License)

Hueco Tanks Lightening Storm by Dana Le from Flickr (Creative Commons License)

I got a message from a photographer friend who said a company is using many photographers’ work on their site without permission. He investigated the company’s copyright policy and was astonished that they make people provide six things to get an image removed. He sent me the link. Here’s what they require:

  1. Information reasonably sufficient to permit us to contact the complaining party (e.g., address, telephone number and email address);
  2. A physical or electronic signature of the person authorized to act on behalf of the owner of the copyrighted work(s) that is/are alleged to have been infringed;
  3. An identification of the copyrighted work(s) you claim is/are being infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  4. Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material;
  5. A statement that the complaining party has a good faith belief that use of the material is unauthorized; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

When I saw the list, I smiled. This is how the Digital Millennium Copyright Act (DMCA) works. When you send a DMCA takedown notice, you have to tell the web host who you are, which of your photos is being used, where they can find the image on the alleged copyright infringer’s site, and you have to promise that you’re telling the truth. If you provide this information, they are required to remove the image from the alleged infringer’s site.

This is what disturbs me about this situation. This company uses many images on its site. As an outsider looking in, it appears that they at least suspect that infringement is happening and their way to dealing with it to remove the infringing images when they’re notified. I would not be surprised to learn that this company outsources their content creation so they wouldn’t know if their use of an image was violating someone’s copyright. I hope they have a policy to fire contractors with a track record of copyright infringement.

Sending a DMCA takedown notice is only one option when a photographer suspects their work is being used without permission. Some photographers opt to send a bill or file a lawsuit against them instead.

If you want a resource that explains the legalities of copyright and social media in plain English, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How To Trademark Your Own Name

0688 Pittsburgh - Senator John Heinz History Center by Klaus Nahr from Flickr (Creative Commons License)

0688 Pittsburgh – Senator John Heinz History Center by Klaus Nahr from Flickr (Creative Commons License)

Recently a friend posted on my Facebook page, “I’m considering trademarking my name. Can I do that?”

Yes you can, but it’s a little complicated. Let’s start with some trademark basics.

There are five ways to describe a potential trademark: fanciful, arbitrary, suggestive, descriptive or generic. Fanciful, arbitrary, and suggestive marks can be registered on what’s called the primary registry of the U.S. Patent and Trademark Office (USPTO) as soon as you’re using them in commerce. When yo have a registered trademark, no one can enter the market in your industry and use your trademark or something confusingly similar to it. Generic marks can never be registered. Descriptive marks fall in between these two groups.

Descriptive trademarks describe the product they’re attached to. If you have a descriptive mark, you can put on the USPTO’s secondary registry when you start using it in commerce, but you can’t bump it to the primary registry until have “acquired distinctiveness,” which typically happens after five years of continuous use.

When you name your business after yourself – i.e., John Smith Graphic Design (and your name is John Smith), you have a descriptive trademark. If you’ve only been in business for a short time, the USPTO doesn’t want to give you the exclusive rights to your name in your industry – thus all the other John Smiths who are graphic designers couldn’t call their companies, “John Smith Graphic Design” or something similar to it. They make you wait until you’ve been in business for five years before giving you nationwide exclusivity over your company name in your industry.

So can my friend register a trademark for her name? Probably, but I’d have to take a closer look at her situation to determine how long she’s been using it as a trademark and whether someone else has already registered the same name in the same industry.

If you have any questions about whether you can register your desired trademark, feel free to connect with me on Twitter, Facebook, LinkedIn, Google+, YouTube, or send me an email. You can also subscribe to the firm’s monthly newsletter. If you want more information about Carter Law Firm, please visit the homepage.

What Are You Buying When You Use an Independent Contractor?

Photographer Dan by Kevin Dooley from Flickr (Creative Commons License)

Photographer Dan by Kevin Dooley from Flickr (Creative Commons License)

I get questions all the time from people involved in situations where a business outsources the creation of their website, marketing materials, or other photography work about who owns the copyright in the final work product and what can the other side do with it. And I get these questions from people on both sides of the relationship – the hiring company and the artist.

In these situations, my first question is always, “What does the contract say?” Under the U.S. Copyright Laws, if you hire a third party to do your graphic design, photography, or similar work, the artist owns the copyright in whatever you’ve hired them to create unless you have a written and signed contract that says you will own the copyright in the final product. A lot of business owners don’t understand this. They think they automatically get the rights in whatever they’ve hired someone to create just because they’ve paid for it. And that’s not true. Without an explicit contract that says they own the copyright, the artist owns it and the business has an implied license to use it.

Look at it this way – if you buy a poster for your office, you’re only buying the print. You don’t get the copyright with it. You can decide where you’re going to hang it or if you’re going to get rid of it, but you can’t make copies of it and sell them. Likewise, if you hire someone to do photography work for your website, you’re only buying the digital images, not the copyright in them. If you wanted to do something else with the images, you would need the photographer’s permission. If wanted to buy the rights, you could do that, but expect to pay extra.

There are many artists who write their contracts to say that the business hiring them owns the copyright in whatever they’ve hired the artist to create once they’ve paid their bill in full. That means if the client hasn’t paid their bill, they don’t own the rights to the work product, and the artist has rights to remove it from the client’s website if the client is using it without complying with the terms of the contract. I recently had a discussion with a website designer about modifying her contract template to explicitly state that she can and will shut down the client’s website if they are using her work and they haven’t paid the balance owed to her.

Here’s a video I did on additional issues you want to consider if you are or working with a third party contractor.

If you are a third party contractor or working with one, please read your contract carefully. This is the document for managing your relationship, including who owns the final work product and what happens if a problem arises. If you have contract templates in your work, make sure a skilled business and intellectual property attorney reviews them before you use it, because otherwise you may be stuck with terms that you don’t like.

If you want to chat more about working with contractors, copyright, and/or contracts, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Copyright Assignment vs Exclusive License

Is Copyright a Little Fuzzy? by Elias Bizannes from Flickr (Creative Commons License)

Is Copyright a Little Fuzzy? by Elias Bizannes from Flickr (Creative Commons License)

I recently got an email from someone who asked me to explain the difference between a copyright assignment and an exclusive copyright license. I told him to call me and I’d explain it and he never did. So I’m writing a post about it.

The main difference between an assignment and a license is who owns the copyright. In an assignment you give up ownership and in a license you retain it.

Copyright Assignment
When you have a copyright assignment, you give someone else your copyright (usually in exchange for money).  Once you assign your copyright, you no longer own it. You can’t get it back unless the person you assigned it to gives it back or sells it back to you. Copyright assignments have to be in writing to be valid.

If you assign your copyright in a work to someone and then you try to use that same work – perhaps in a new project or your portfolio, you could be committing copyright infringement. The person you previously assigned your copyright to would have the authority to make you stop using it.

This may sound bizarre to you and some people have trouble grasping the idea that you can create something and be in a position where it’s illegal for you to use it. Think of it in terms of other property: If you sell your neighbor your car, you’re no longer allowed to drive it without their permission. Likewise if you sell your copyright to someone, you need their permission to use it.

Exclusive Copyright License
When you have a copyright license, you retain ownership of your copyright and you give someone permission to use it. In a license, you determine which of your copyright rights you’re letting the person use.  (A copyright comes with the rights to copy, distribute, display, perform, and make derivative works.)  A copyright license can be for all the rights, or just some of them.

An exclusive copyright license means that only the person who is licensing the rights can use them. You, as the copyright owner, can’t even use them while the license is in place. A copyright license can be perpetual or time limited.  So when a person has an exclusive perpetual copyright license that covers all the copyright rights to a work, it looks similar to a copyright assignment, except that the ownership of the copyright didn’t change. If someone wanted an exclusive perpetual copyright license, that might be a situation where the owner might want to consider assigning the license.

In a copyright license, you can have rights over what the person licensing the rights can do with it. For example, you might have the right to ensure that the licensing party is adhering to the standards you set regarding how the copyright will be used. If it’s a situation where you’ve licensed your copyright in exchange for share of the profits, you would be owed an accounting to ensure that you’re not being ripped off. Licenses tend to be complicated and should be in writing.

Deciding whether you should have a copyright assignment or a copyright license for your work can be a complicated decision that should be evaluated carefully, possibly with the assistance of a copyright attorney in your community who can explain your options and write effective contracts for you.

If you want to chat with me about copyright, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Copyright FAQs

Large Copyright Graffiti Sign on Cream Colored Wall by Horia Varlan from Flickr (Creative Commons License)

Large Copyright Graffiti Sign on Cream Colored Wall by Horia Varlan from Flickr (Creative Commons License)

When I speak, I often refer to previous blog posts as potential resources for attendees. I frequently talk about copyright issues and I realized I haven’t written a post about copyright basics. So let me fix that.

What is Copyright?
The copyright law gives you rights to your original work. Your work may be comprised of text, drawings, photographs, video, sculpture, music, etc. When you create something, you have the right to control where your work is copied, distributed, displayed, performed, and what derivative works can be made from it.

What’s a Derivative Work?

When Do You Get Copyright Rights?
You get your copyright rights the moment your work is fixed in any tangible medium. It has to be a work you’ve created, not just an idea in your head. You do not have to register your work with the U.S. Copyright Office or even put a copyright notice on your work (“©[YEAR] [YOUR NAME]”) to get your rights.

How Long Does Copyright Last?
For all works created on or after January 1, 1978, the duration of copyright is as followed:

  • For work created by an individual: Life of the author + 70 years
  • For work created by a company: 120 years from the date of creation

After this time period, the work become part of the public domain and anyone can use it for any purpose without needing the copyright owner’s permission. The owner of a copyright can give up their rights to their work at any time by releasing it into the public domain. If they release a work into the public domain, they can never reclaim their copyright rights.

What’s the Difference Between Copyright and Trademark?

What’s the Benefit of Registering a Copyright with the Copyright Office?
There are two main benefits for registering your copyright with the U.S. Copyright Office:

  1. It is strong evidence that you actually own what you claim you own.
  2. You cannot sue for copyright infringement unless you register your work with the Copyright Office.

If you want to be in a position where you can sue for copyright infringement when someone steals your work, talk to a copyright attorney about your copyright strategy. There are many ways to protect your work. This is where the law can get really complicated and you want to make sure you’ve set yourself up for your desired outcome.

How Do You Register Your Work with the Copyright Office?
You can register your work on the Copyright Office’s website. You’ll need to fill out the form, upload a copy of your work, and pay a filing fee. The filing fee for a single work is $35-55. You can do this yourself, but the Copyright Office’s website is not very user-friendly.  I recommend at least hiring an attorney to walk you through the process the first time.

Legal Side of Blogging Book CoverIf you want to do it all yourself, allot at least 2-3 hour to get through it the first time. And you might want to have an adult beverage on ice as a reward at the end of the process.

To put it in context, it took me an hour the first time I registered my own work and I knew what I was doing. (I have a certificate in intellectual property in addition to my law degree.) Now, I can submit an application to register a copyright in under 30 minutes most of the time.

I hope this has been helpful. If you have questions about how copyright works in terms of the internet, social media, and /or blogging, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. Approximately half the book addresses copyright issues.

If you want to talk more about copyright, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Intellectual Property in Comic Books

Comic Books by Sam Howzit from Flickr (Creative Commons License)

Comic Books by Sam Howzit from Flickr (Creative Commons License)

I had the pleasure of presenting on Comic Book Creator Rights with the award-winner comic author Mike Baron at Phoenix Comicon last weekend. We talked about how important it is for writers and artists to understand what rights they have in their work and the various ways they can protect it.

Copyright
An artist or writer has copyright rights in their work the moment they put fingers to keyboard or pen to paper. As the owner of their work, they can control where their work is copied, distributed, displayed, performed, and what derivative works can be made.

Unlike books where a complete story is often contained in a single volume, a comic book story may be broken up into several 22-page issues. One thing Mike and I suggested to our audience was registering the copyright in the “story bible” as well as each issue that the artist creates. A story bible is a master document that lays out the setting and norms of that universe and the backstory and characteristics of each major character.

The copyright laws regarding infringement for published and unpublished works are different, and under the current laws (that are in need of overhaul), a work that is released only online is “unpublished.” To maximize your options for recourse (i.e., financial damages), I advise artists to register their work with the U.S. Copyright Office before they release it if it is unpublished. Mike also suggested doing a short run of each issue so the work will qualify as “published” and the rules about when you have to register to be eligible for what’s called statutory damages are more favorable.

Trademark
A comic book artist could have several trademarks related to their series – the name of the series, logos, slogans, and the name and possibly depiction of the characters. Any or all of these could be trademarks used to market the artist’s work.

For each of these potential trademarks, it’s a good idea to run a search on the U.S. Patent and Trademark Office’s (USPTO) trademark database to make sure that another artist doesn’t already have the exclusive right to use that trademark in relation to comic books or similar products. If they do, they can force the other person to rebrand.

If the desired trademarks are available, putting a superscript “TM” next to them will put everyone on notice that the artist is using them as trademarks, not just elements in their series.  Registering them with the USPTO will increase their value and give the artist the exclusive right to use those trademarks. No one else in the industry could have the same trademark in the U.S. Registration also increases their value and may make the artist’s work more desirable if their goal is to be acquired.

Identifying and creating a strategy to protect your intellectual property is complicated, so if you want to talk more about this subject, feel free to  connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Fan Art and Copyright: You May Have Rights

Hairy Situation by JD Hancock from Flickr (Creative Commons License)

Hairy Situation by JD Hancock from Flickr (Creative Commons License)

Let me tell you a story. MGM owns the copyright for The Wizard of Oz. In 1976, they hired Bradford Exchange to create a series of Wizard of Oz collector plates. Bradford had a competition for the “Dorothy” plate design. Jorie Gracen submitted a design that clearly depicted Dorothy, Toto, and the yellow brick road, but the image doesn’t match any screenshot from the film. Gracen’s design won but she refused to sign the contract to turn her painting into the plate. Bradford allegedly gave her painting to another artist who used it to create a similar design which was made into the plate.

Gracen sued Bradford and MGM for copyright infringement…and she lost, but this is a pivotal case regarding derivative works.

This is a picture of the plate that was actually made that is remarkably similar to Gracen's painting

This is a picture of the plate that was actually made that is remarkably similar to Gracen’s painting

The collector plates were derivative works; however, Gracen was acting in compliance with Bradford’s direction when she created her design. She couldn’t get a copyright in her work because it was based on the movie but she couldn’t get in trouble for simply creating it for the contest.

Bradford’s mistake was they didn’t include a copyright assignment or license in the competition rules. I would expect a similar contest to include a provision that everything the artist creates for the contest becomes the proper of the contest organizers or the company they represent.

Here’s the big lesson I take away from this case – if a copyright holder tells fans to create fan fiction or fan art, the fans’ work may not be original enough to warrant their own copyrights, but they shouldn’t get in trouble for creating something that they have been authorized to create.

However, the fans may only be able to create fan fiction or fan art; they may be committing infringement if they try to distribute it. I would expect the copyright holder to be especially upset if you try to sell your work because you could be interfering with their profits and/or hurting their brand with inferior artwork.

I will be doing two panels on copyright at Phoenix Comicon this weekend:

  • Comic Book Creator Rights, Saturday, June 7, 2014, 10:30 a.m., North 130 with Mike Baron
  • Copyright and Fan Fiction/Art, Sunday, June 8, 2014, 12 p.m. North 130

Copyright is a murky subject. If you want to chat more with me about this subject, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Is It Fan Art or Copyright Infringement?

Toying with the Men by JD Hancock from Flickr (Creative Commons License)

Toying With The Men by JD Hancock from Flickr (Creative Commons License)

I have the pleasure of speaking about copyright and fan fiction and fan art at Phoenix Comicon this year. It’s always fun to hear about the projects fans are working on, and to see that so many of them are mindful about the copyright. I wish I had more black and white answers for them about what they can and can’t do.

Fan fiction and fan art falls squarely into the murky realm of copyright and fair use. The owner of a copyright controls where and how their work is copied, displayed, distributed, performed, and what derivative works are made. Fan fiction and fan art can be derivative works but they also may be protected by fair use.

Fair use is part of the copyright laws that acknowledges the fact that many works are inspired by past art. This law allows artists to build on existing works in creative and innovative ways. One thing to always remember is that fair use is a defense, not a permission slip. There is always a risk that the copyright holder will claim you’re infringing on their copyright and you’ll have to basically tell the court, “Yes your honor, I used their work but it’s OK because . . . .”

When a court considers a fair use case, these are some of the main factors it considers:

  • Purpose and character of your use of another’s work (Is what you did transformative and did you do it for commercial use?)
  • Nature of the copyrighted work (What did you copy?)
  • Amount and substantiality of the copyrighted work used (How much of the original – quality and quantity – did you copy?)
  • Effect on the market (Would someone seek out the original and accept your work as a substitute?)

These are some of the main factors, but the court can consider others if it wishes. This is also not to be treated as mathematical equation. Regardless of how many fair use factors favor you, you can always lose.

For Phoenix Comicon this year, I wanted to create an easy mnemonic device that fans can use to remember the fair use factors; and here it is: PAIN.

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Another thing to consider if you want to use another artist’s work is how the copyright holder historically responds to fan fiction and fan art. Some encourage it; some are OK with it as long as you’re not making money off of it; some are OK with it as long as it’s not sexual (i.e., slash fiction); and some dislike all fan fiction and fan art and will try to lay the smackdown on you if you create it.

If you want to talk more about the legalities of fan fiction and fan art, come see me at Phoenix Comicon on Sunday, June 8th at noon. Both talks will be in North 130. I’m also doing a panel on Creator Rights on Saturday, June 7th at 10:30 a.m.  You can connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.