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GDE730: Week 3 – Contextual Intellectual

The more I think about how saṭr can function online, the more I become concerned about how to legally protect the people I want to involve. Historically, online databases of creative work are not new, and there has been a myriad of challenges that the art and design community have faced when displaying their work to the public.


When approaching the topic of ethical considerations one must take as the host of an online platform in order to ensure all parties involved are protected, I asked myself what sort of preventative legal measures one can take.

Permission Rights


As a first step, it is recommended to sign permission rights between the host and the creatives. This will set up an understanding between the two parties as to the legal responsibilities required. (Brankov, 2020) It will also outline how the creative projects will be used and to what extent. This is especially the case as the person creating the work is not an employee and he or she will be considered an independent contractor. In this event, the ownership or usage rights of that person’s work are not automatic. (Stim, 2017)

The below is a sample I’ve tweaked from a similar project’s agreement document:


The Creative is the creator of the artwork. The Creative is the intellectual owner of all copyrights regarding the artwork. All Intellectual Property and rights relating to the produced artwork, including copyright and ownership rights remain the property of the Creative. Creative has the right to be acknowledged as the creator of the artwork. The Creative warrants that all rights, including the copyright, in the produced artwork, are vested exclusively in the Creative. The Creative warrants that there is no infringement of the rights of any third party. The Creative further indemnifies saṭr against all costs, demands, claims, and proceedings arising in connection with a breach of this warranty.


The creatives hereby grants and assigns saṭr unlimited rights to reproduce, publicly display, print, employ, advertise, distribute, or otherwise utilize the project in any form to advertise, promote and support saṭr. saṭr has the right to use any form of visual or audio representation, such as photos, videos, and other material of the artwork with proper credits to the Creative. The Creative grants saṭr the right to provide copyright of visual or audio reproduction of the artwork to third parties such as newspaper agencies, Bloggers, TV Stations, etc. saṭr is not responsible for any 3rd party copyright infringements or misuse to the Creative’s copyright. However saṭr is granted the right to protect its and the Creative’s copyright if it has been put in discredit, is generally misrepresented or infringed by any 3rd party. saṭr can but does not have to protect the copyright of the Creative for the bespoken project.

Online Terms of Use


It’s important to consider how the creative projects may be put at risk by existing online, through a website, and social media. To counter this, a protective measure that’s recommended is to note terms of use on saṭr’s website. For example, the terms of use should inform visitors that certain materials and works of art on the website are protected by copyright and also may be subject to other third-party rights, including trademark and privacy, and/or publicity rights. The terms of use should also disclaim any warranties as to the platform’s rights in the copyrighted materials and should limit the platform’s liability for unauthorized downstream uses of the content. (Brankov, 2020)


Fair Use

The creative outputs of the parties involved always run the risk of infringing on a copyright or intellectual property of another artist’s work. As a host of a platform that commissions this work, it’s pertinent that the creatives I work with are informed not to copy or plagiarise unless it falls under Fair Use:

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. (U.S. Copyright Office, 2019)

Only under Fair Use is it okay for the involved parties to insert any existing works into the projects they submit, and as long as they sign off on it that it has not infringed on any rights.

Comparative Case Studies


To test if these preventative legal measures make sense in the real world, I carried out research to compare two case studies of platforms that offer a similar creative space:


It’s Nice That

In It’s Nice That’s terms of service, they outline “It’s Nice That Content”, a section where they outline the ownership rights of the content that is featured on their online platforms:


“The rights in materials, images, information, data, trade marks, trade names and logos and other content included on It’s Nice That (“It’s Nice That content”) are owned by us or the relevant third party content owner. All rights are reserved and acknowledged. As It’s Nice That content is protected by a variety of third party rights, you may not copy, adapt, re-publish, make available to the public or print off copies of It’s Nice That content in any way, or use it other than as part of It’s Nice That and for your personal non-commercial use, without our prior written permission.”


It’s important to note that It’s Nice That works with creatives in a variety of ways, from commissions to collaborations, and even picking up and showcasing already established work. In my opinion, this disclaimer isn’t so straightforward, and perhaps it has been tailored for public notice. It is an indicator that there are perhaps lengthier, more detailed agreements behind the scenes, each tailored for the type of party they work with.


Dribbble

Dribbble takes a much more straightforward approach, as their platform operates quite differently: it’s a space where designers can self-publish their work and contribute to the larger network of inspirational resources online. As long as a person has created an account, they are free to upload content as they wish. Due to this, Dribbble has to take extra precautions to shed itself from any legal repercussions, but also take action when needed. They have a publicly facing DMCA disclaimer, with instructions on how to file an infringement seen on their website. Here is an excerpt of this:


“We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this site (the “Site”) infringe your copyright, you may request removal of those materials (or access to them) from the Site by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following… “


They offer counterclaim instructions as well, and the system is quite reminiscent of larger media platforms like YouTube, which have in recent years faced quite a heavy backlash for copyrighted material that has found its way onto the platform by way of its users.


Conclusion


To close off this week, I have put together an agreement to be signed between satr and the creative individuals involved –

As a creative who often puts themselves in the shoes of other creatives, I do wish to provide a platform that acts as a safe haven for all those involved, but logically, this isn’t possible without a bottomless wallet and the best lawyers in the world. The reality is that these legal preventative measures have to be taken to protecting the platform just as much as the other parties, and that includes absolving itself of any future infringement of copyrights against the creatives taking part. With the way that our industry works today, individual creatives need to take copyright matters into their own hands and inform themselves on how to best protect their own work, as well as avoid the pitfalls of plagiarism. The best we can do is educate ourselves on the ins and outs of these legal workings and make sure we do our part in protecting what we can to the best of our abilities.

Resources

Brankov, A.K. (2020). Copyright Considerations as Art Galleries and Museums Move Online in the Wake of COVID-19. [online] New York State Bar Association. Available at: https://nysba.org/copyright-considerations-as-art-galleries-and-museums-move-online-in-the-wake-of-covid-19/ [Accessed 24 Jun. 2021].

Stim, R. (2017). The Basics of Getting Permission. [online] Stanford Copyright and Fair Use Center. Available at: https://fairuse.stanford.edu/overview/introduction/getting-permission/.

U.S. Copyright Office (2019). More Information on Fair Use | U.S. Copyright Office. [online] Copyright.gov. Available at: https://www.copyright.gov/fair-use/more-info.html.


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