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Some legal terms that all creators and marketers should know

Updated: Nov 9, 2022

As a creator and marketer, you likely use images and other assets in your work. You may have heard that using copyrighted content without permission is illegal. And while it's true that it can be very dangerous to use someone else's intellectual property (IP) without their consent, there are ways to do so legally. In this article, we'll cover common terms related to copyright law and how they apply to creators and marketers of all types.



Intellectual Property

Intellectual Property is a legal term for an idea, process, or expression that is unique to the creator. It can be used to protect an idea, process, or expression.

Intellectual Property is not the same as copyright. Copyright protection applies only to fixed works such as books and music, whereas Intellectual Property law covers any type of creative property—from inventions like smartphones and pharmaceuticals to logos and business names; from designs such as clothing or jewellery; from literary works like novels or software programs; even from unique sounds (think ringtones).


Copyright

Copyright is a legal right of authors, artists or other creators that gives them control over the use of their original works. Copyright law protects original works such as literary compositions, musical scores, paintings, sculptures and architectural designs if they are fixed in any physical medium (e.g., printed on paper).

The National Rights Registry (NRR) portal is the central repository in Kenya for collating details pertaining to the ownership of various copyright works. As such, it enables stakeholders in accessing reliable information regarding all types of copyright works, namely: manuscripts including books and journals; computer software; sound recordings; radio and television broadcasts; films; broadcasts by cable services and cable networks etcetera.


Royalties

Royalties are payments made by a copyright owner to the owner of a copyrighted work. They can be paid based on the number of copies sold or the amount of time a book, song, film or other types of media is used. Royalties are not automatically paid by publishers or producers and must be negotiated before they are granted.


Trademark

A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of goods of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of services rather than goods.


A collective mark is used by members of an association to indicate membership in the association. For example, if there were a group of artists who wanted to form an organization so their work would receive better exposure at art fairs and galleries, they might apply for federal registration for "Artist Member" as their collective mark (or CM). The CM would be used on each artist’s artwork to show that he/she was part of this association.


A certification mark certifies some characteristic or quality about its owner's goods or services such as origin or purity but does not include other words such as "organic" because these words merely describe what makes up the product itself (the organic ingredients). There are two types:

  • certification marks which do not have any other word associated with them; and

  • collective certification marks which must include another word like “organic” since without it consumers would not know what type foods were being sold under this CTM."

Trade dress is the non-functional features of packaging or product design used to identify it with a particular business and distinguish it from others within its field.


Trade name refers to any word (or words) used by a business in conducting its trade, while trade secret refers to information (a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information) which derives economic value from not being generally known. The archetypal example of a trade secret is Coca-Cola's recipe as something allegedly known only by its creator John Pemberton and his successor Asa Candler (who sold it to them in 1888).


Distribution

Distribution is the act of putting copies of a piece of work into the stream of commerce. In other words, distribution is how you make your work available for sale or use. It's important to keep in mind that distribution is not publication; only once you have distributed your work can it be considered published and thus protected by copyright laws.

The two main types of distribution are direct and indirect:

  • Direct: This means that you put copies of your work into the stream yourself (e.g., selling books at bookstores).

  • Indirect: This means that you authorize someone else to do it on your behalf (e.g., hiring an agent to sell movie rights).


Publication

Publication is an important concept in copyright law. It is the distribution of copies of a piece of work to the general public, or to any section of the public outside the normal circle of a family and its social acquaintances. A work is published when it is made generally available to the public at large, or to some significant section thereof that includes persons who are not members of the immediate circle of friends and acquaintances.

The copyright owner has exclusive control over this right, which means that he/she can decide how and where his/her work will be published (e.g., via YouTube or Netflix). The owner does not actually have to be there when it happens; he/she can authorize someone else (a representative) for this purpose too.


Licenses

Licenses are used in the creative world as legal contracts. They ensure that the person who creates something (the creator) owns their work, while also allowing other people to use it. These can be exclusive or non-exclusive:

  • Exclusive: Only one person can use your work. For example, if you sign an exclusive license with a magazine publisher and they don't sell another copy of your magazine illustration to anyone else for a year after its initial publication date, then no one else will be able to buy or use that image during that time period either.

  • Non-Exclusive: Anyone can use your work as long as they pay you for it and follow any additional terms in the contract (for example, not claiming authorship).

Patent

A patent is a right granted to an inventor to exclude others from making, using, or selling the invention for a limited time in exchange for public disclosure of the invention.

There are different types of patents: Utility Patents, Design Patents and Plant Patents, two of which are relevant in this context.


1. Design Patent

Design patents protect the look of a product. Only products, not business methods or software, are eligible for design patent protection. Design patents are not available for plants or animals.


2. Utility Patent

A utility patent is for a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. Utility patents are for the protection of new and useful inventions. They protect the way things work by covering the invention itself. Anytime you create something new that solves a problem or improves upon an existing solution, you may be eligible to receive a utility patent.


Don't get into legal trouble when using images, music, videos and other assets.

You can avoid legal trouble by following these simple rules:

  • Don't copy other people's work.

  • Don't use other people's work without permission.

  • Don't use other people's work without giving credit to the original creator, whether you're using their work in an image or video, on your social media, website or blog post or elsewhere.


 

Whether you’re a creator or a marketer, it’s important to understand the legal terms that apply to your work. If you make mistakes or use someone else’s intellectual property without permission, it could lead to serious consequences—from lawsuits and litigation to bad publicity for your brand. Knowing your rights and responsibilities will protect both you and the people whose work you share online.

 

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