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DAMIEN ALLEN: Good afternoon and welcome to Traverse Legal Radio. My name is Damien Allen in the studio, and we are speaking with Mr. Enrico Schaefer at Traverse Legal and we are talking about copyright licensing.
ENRICO SCHAEFER: Good afternoon, Damien. How are you doing today?
DAMIEN ALLEN: Not too bad, yourself sir?
ENRICO SCHAEFER: Great!
DAMIEN ALLEN: Alright! Now, we’re talking about copyrights so I guess the first thing we’re going to have to approach is…what is a copyright and why would I need one?
ENRICO SCHAEFER: Well, a copyright is a property right under U.S. Law and many other countries and essentially is an intangible property right…that’s what lawyers tend to call copyrights - intangible property – because you can’t touch it and feel it and play with it like you can a car. However, the things that are subject to copyright oftentimes are tangible. So, for instance, you can have a copyright if you are the author of a book, you are in all likelihood the copyright owner and you maintain the rights as to how that book is used and distributed and reproduced and copied, etc. Ok? So, a copyright is something that attaches to an original work of authorship. So, it can be a painting, it could be a photograph, it could be written words, it could be a book, It can be a film, it can be lots of different things, and you as the person who created that, want to be able to control its use.
DAMIEN ALLEN: What other rights would a copyright owner have?
ENRICO SCHAEFER: Well, if you think about a copyright as a property right under law, it really is a bundle of rights. So a copyright owner, for instance, of a music copyright maintains the exclusive right meaning they’re the only person in the world at inception of the copyright to be able to reproduce the work (that piece of music), to perform that piece of music, to prepare derivative works or like works from that music, to distribute copies of that music over the Internet, mp3’s, CD’s, etc. or over the radio, or to display that work which in the case of music, it would likely be the CD cover and any artwork related to it. So, the copyright owner maintains a bundle of rights which allow them to either use it exclusively to themselves and be the only owner who can reproduce, create derivatives, distribute, perform, display or to grant others certain limited rights to do some of those things as well.
DAMIEN ALLEN: Well, if I want to allow someone else to use my copyrighted work, what do I have to do?
ENRICO SCHAEFER: Well, if you are a copyright owner, if you’re the author of an original work, whether or not it’s a painting or music or a photograph, book or otherwise, what you want to be thinking about is, what do I want to allow someone else to do? And if I’m the person who is getting the right to use the work, what I want to make sure is that I’m not going to be accused of copyright infringement for using that, for instance, that photograph on my website, that piece of music on my website or in my Utube video, etc. So, both sides want to be thinking about what’s being transferred. Now, let’s think about what if a copyright was a car. And let’s say I was the owner of that car. I can determine whether or not I’m going to allow anyone else to use that car and I can control all aspects of that use. So, I could say, I am going to give you this car and it is now yours. I would have then transferred all of my rights to someone else. Or, I can do something much more limited. I could say I own this car and I’m going to allow you to use it whenever you want; that’s pretty broad, or, I could say I’m going to allow you use it for today only, still I can say I’m going to allow you to use that today only and only to go to the store and back. So, I, as the copyright owner, as the owner of the car, get to control exactly what I am allowing someone else to do with it. And so, some of the things I want to be thinking about are making sure that I am spelling out what the appropriate use might be, whether or not it’s going to be an exclusive or nonexclusive use, and you should know,
Damien, that if I’m going to grant exclusive use of my copyright protected song for instance, If I’m going to allow someone exclusive use to use that song in a movie and say that you’re the only person who I’m going to allow to use my song in any move and I’m going to grant the exclusive right to that person, then that has to be in writing. So, exclusive rights, exclusive licenses need to be in writing. Nonexclusive rights can be oral but typically as we all know it’s better to put it in writing that way, everyone understands what’s being transferred, what’s the use is. So, the first thing you want to be thinking about is exclusive versus nonexclusive, and then if you are the copyright owner, you want to think, what exactly am I allowing this person to do with my work and for how long? And under what circumstances do those rights terminate? Do they no longer get to use it? And what are the limits on what I am allowing them to do with this piece of music, this photograph, this book? If I am the person who’s receiving a license to use a copyright protected work, again, I want to make sure that I’m getting whatever rights I need in order to make the appropriate use. And, of course, royalty fees and the rest, who’s getting paid what? Those are all issues that we typically see when we get involved in copyright licensing matters for clients. Every instance is unique, and I will tell copyright owners again, as I always do, that if you intend on protecting your original work, then you need to make sure that no one is using it without your permission and those people who do have your permission get it in writing, make sure that it is carefully spelled out in detail, and then down the line as things start to progress and your work becomes more popular, you’ll be able to monetize that much more effectively.
DAMIEN ALLEN: A lot of information for this topic and you can find out more about this topic by listening to the ongoing series of copyright law and licensing shows here on Traverse Legal Radio. Thank you very much for joining us today, Enrico.
ENRICO SCHAEFER: Thank you, Damien.
DAMIEN ALLEN: It’s been a great time as usual. I’m Damien Allen in the Studio. Thanks everybody for joining us. Have a great afternoon.
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