At Content Marketing World 2017, I had the pleasure of meeting attorney Ruth Carter, an authority on the intersection of business, social media, and intellectual property law who presented, “Keeping It Legal – Strategies for Content Creation and Management (A Legal Compliance Plan for Content Marketing).”
In a side conversation, Ruth completely upended what I thought I knew about content, contracts and intellectual property rights. I found her knowledge so insightful, I invited her to participate in an interview for this blog, which I’m honored to share with you now.
What’s the biggest misperception content producers have about intellectual property law?
It’s the assumption that whoever paid for the work owns the copyright.
No. In the United States, copyright ownership can only be transferred in writing and that written document must be signed by the transferor – the content creator. It’s true that “work made for hire” is a legal term, but one of the rules is that a work-made-for-hire contract, to be valid, must be signed by both parties before work begins.
I had no idea. I thought copyright automatically transferred to the purchasing party.
Many people make the same wrong assumption. The biggest mistake they make is not having contracts when work is outsourced. A lot of times, all they have are email exchanges back and forth, or texts. But there is no formal document in which all the terms are described and listed.
I think of a contract as a “relationship management document.” You know, like in the Big Bang Theory when Sheldon and Leonard sign a roommate agreement – a super-nerdy contract that covers things like Godzilla, body snatchers and thermostat temperatures. From a business perspective, a contract should outline things like:
- What are you being hired to create?
- Who owns the copyright in what you create?
- How will you deal with delays?
- How does payment work?
- How do you deal with changes in project scope?
- How will you resolve problems if and when they occur?
The contract puts everybody on the same page so that when there are questions, they have a master document to refer to. It’s when things go sideways that you need the contract to tell you the rules of the relationship and how to address the question at hand.
Any thoughts on kill fees?
Why wouldn’t you include one? Usually, if you don’t, it’s because you didn’t know you could or because you’re afraid it might offend the client. But if someone balks, maybe you don’t want them as a client. Remember, the kill fee can cover, not only the work you’ve completed, but the opportunity loss that comes from concentrating on the client’s work at the exclusion of other projects.
I often work for multiple clients competing in the same sector. Any special contracting considerations regarding confidentiality?
You usually want to include a statement to the effect that information labeled confidential will be kept confidential until it becomes public in the ordinary course of business. Clients may also want you to define the actual measures you put in place, like passwords, to protect confidentiality.
Where can we go for more information on content and law?
The Internet is a good starting point, but be careful about which sources you use: there’s a lot of inaccurate and blatantly false information out there. For example, I’m surprised by how many people believe you can use any image on the Internet as long as you provide attribution and a link back to the original. Not true. You may be committing copyright infringement, admitting it, and then telling the copyright owner about it.
Better call Saul!
Right! You really need to work with attorneys who understand both business and intellectual property law. I advise professional content creators to ask their lawyers for contract templates they can use repeatedly, perhaps with a core base and additional provisions that can be swapped in or out as demanded by specific circumstances.
Keep in mind that whoever presents the contract will have it written to their advantage; the template I write for creators looks very different from the template I write for people who outsource content creation.
Terrific, thank you very much! Are there other resources you can recommend?
Your readers can will find lots of information on my blog. And I do a video show called “Question of the Day” that I release every week on YouTube. See you there!