Monthly Archives: January 2010

Creative Solutions, Common Problems

The Credit Crunch has left virtually every business looking at their assets and how they can exploit them, as well as how they generate revenue. Creative businesses more than most have fallen prey to uncertainty in the market, with many of their clients (albeit short-sightedly) rating their work as a comparative luxury against everyday expenses such as rent, salaries and insurance. The audience of this article would, of course, tell you otherwise; in an increasingly connected world there has never been a better time to do some serious work on your brand and identity.

Creativity is luckily an asset which, legally speaking is taken very seriously, and can be defended very fiercely if you’re willing and able to do so. Many creative businesses aren’t always aware of this fact, especially the fact that, unless they agree to other terms with their clients (which I wouldn’t advise), then even when they carry out work to a client’s detailed brief and their fees are paid in full, the ultimate ownership of any intellectual property rights – in this case, copyright – in whatever they produce will usually stay with the creative; clients will only ever have (again, unless alternative terms are agreed) a licence to use those products for the terms of the original retainer. For example, imagery for a leaflet campaign could not normally be used as the basis for a stained glass window in a corporate headquarters. The “freehold” of the copyright in any commissioned work stays with its creator.

There’s a good reason for this – creativity and innovation are seen by the Government as the lifeblood of the new “knowledge economy” and have been for a very long time. Without the ability to make a living from their efforts, creatives and innovators would simply stop trying and the industry would collapse on itself. In reality, very few creatives will want to go to war with their clients or third parties even if the work they produce is misused or reproduced without permission as part of another presentation, but they do have legal right to do so. Traditional wisdom says that those rights should be held onto for as long as possible and defended to the hilt – at least, that’s what your lawyers should normally be telling you.

Copyright comes into existence as soon as you record in some permanent form an original piece of work (whether it be literary, artistic, film, music or photography) that isn’t substantially based on the work of a third party and this makes it the most valuable intellectual property right of all for the creative industry as well as their most valuable and easily-capitalised asset. Unlike Patents or Trade Marks, copyright is an unregistered right – this means that it costs nothing apart from vigilance, organisation and well-kept notes to secure it and that a third party doesn’t need to examine it or charge a fee for its registration. The trade-off is that you will need to show when, how and by whom it was created. If you can, then the rewards can be almost without limit and your copyright-protected work could be licensed out to generate royalties for over 50 years. Hence, it’s more important for creatives than any other business to have an intellectual property policy in place and to know that your rights are, as far as possible, under lock and key.

We are, however, in the midst of a move towards sharing creativity for the common good and find ourselves in a marketplace where competition for creative work is fiercer than ever. After all, a good portion of Manchester’s economy is made up of creative businesses. Getting your work in the public eye and known to your potential clients and competitors may now well be the key to future work coming in and the ultimate survival of your business, but the balance between hanging on to your assets and generating awareness of them can be difficult to find.

Enter Creative Commons. In its own words, Creative Commons “CC” is “a nonprofit organisation that increases sharing and improves collaboration.” The idea behind the movement is to expand the range of creative works (which remain protected by copyright) which are available to be used legally by anyone so that they can be shared without the threat of a copyright infringement claim. Essentially, CC is meant to create a much larger “public domain” in which creative material can be shared without fear of draconian consequence.

CC works on the principle of some rights in creative works being reserved, rather than all. The group has produced a number of licence documents to be used by creatives to tell the world at large which rights they reserve as well as which rights they are prepared to waive to allow their work to be shared and re-used as the basis of further creativity. It’s all very altruistic, and anathema to traditional wisdom, but the question remains – in a world where there is a small but pronounced move to a new model of innovation and creativity where shared knowledge would ideally become the norm through initiatives such as Manchester Knowledge Capital and the Open Rights Project, is there an opportunity for creatives to lead the way, as they traditionally have, and embrace CC and its licences as a “third way”? Can they be the first industry to get behind CC’s argument that copyright simply isn’t fit for purpose in borderless and truly multicultural world of the digital age?

The answer is, at least for now, probably not. Before jumping to the expected conclusion that I’m speaking as a Lawyer protecting his own profession, you should know that I’m not alone in this opinion. Copyright and capitalism go hand-in-hand, and that isn’t going to change any time soon. Until we can come up with a different way of monetising creativity, copyright remains the only real option and the foundation of the creative industry. In a competitive market where rivals will look to undercut fees and outdo each through skill, the ownership of what they produce and the ability to restrain slavish copying at a lower price will continue to be the only real solution.  Add to that the fact that some of CC’s licences are compatible and it could be easy to see the movement as simply too far ahead of its time.

However, we’re also now very much in a world of viral creativity. Digital technology allows work to reach whole new and potentially huge audiences – showreels can now make their way to potential clients as well as the media and industry bodies (or award judges) in a matter of moments. Surely, unless the channels used to reach an audience are limited to those which emanate from creatives themselves, we should be willing to give up a little to gain a great deal more? Following the trite examples of the Dairy Milk Gorilla or Aleksandr the Meerkat, which only became successful through media saturation, creatives may now only have a real edge where their work is at the forefront of the minds of their stakeholders.

Maybe the solution is a two-stage approach. There will always be a place for traditional copyright protection as long as there is a need to make money through creativity, and there will increasingly be a need to be part of a much larger creative community via a trade-off of the sacrifice of control to reaching a larger audience. CC offers you a number of means of doing so through a number of different licences, each with varying levels of copyright protection that either require users of your work to credit the creator, to use the material in a non-commercial way, or amongst others, not to use them as the basis of new derivative works.

Just as creatives have an idea for work which can capture the public imagination, they will almost certainly have a good idea of what they will be willing to let the world at large capture. CC after all doesn’t suggest that Copyright be done away with, merely that it take a different shape and less restrictive approach. Time will tell whether or not CC really does become the new model but for the time being it may well allow creatives the means of protecting their showreels and controlling how their work is used. For the daily operation and profitability of creative businesses, the copyright system remains as fit for purpose as we’re going to see for a long time.

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