Top Animation News is a weekly column that rounds up the biggest, best and breaking stories from the world of animation. This edition covers October 12 to 19, 2018. Read more »
8 animation legal tips every artist should know
Prior to the invention of the Internet, most animators worked in studios on someone else’s Intellectual Property (IP). Since the dawn of digital, however, many now find themselves playing the part of producer and distributor, promoting and propagating their creative capital across social media and video platforms like YouTube and Vimeo. While these new avenues for animation have doubtlessly democratized and broken down barriers within the industry, these opportunities also open up creators to a litany of legal issues.
To secure the leading legal advice, Toon Boom spoke to Mark Edwards, principal of Edwards PC, Creative Law. The boutique media and entertainment firm has offices in Ottawa and Toronto, and provides legal services to film and television, digital interactive media and music clients. Edwards also has a 20-year personal and professional connection to the animation industry.
In 1997, he left a career in commercial litigation to join an animation company as its head of business and legal affairs. This started a journey that would see him go on to cofound a new studio, Amberwood Entertainment, where he would also find himself in the producer’s chair. His first show was “Hoze Houndz” and over the subsequent six years, he would produce $52 million worth of animation series.
Returning to full-time legal work with Edwards PC, animation is still at the core of what he enjoys doing. His clients in the industry include studios Big Jump and PIP Animation Services. Having both the expertise and experience, he also gives seminars for animators and has a presence at major events including the Ottawa International Animation Festival.
We spoke to Mark Edwards for his top eight legal tips for animators*.
Source: Edwards PC.
- Claim copyright, even if it’s informal.
Edwards tells us you should always claim copyright when exhibiting or sharing your work online. He says, “If you can, define the kinds of use that you’re permitting people to make of your content. Very few animators do that. Consider adding a sentence or two to the page where you are displaying your work saying this is copyright and claiming it in the traditional way with the “C” symbol, plus your name or the name of the company and the date. Indicate that it’s for the private enjoyment of your audience and that you’re not authorizing them to exploit that work and make commercial use of it.”
- If someone has stolen your work online, communicate then litigate!
In the case of someone stealing an animator’s IP, Edwards tells us the artist should communicate with the infringer and advise them that they (the animator) are the creator and copyright owner of the material. He then says, “If you have registered your copyright, communicate that fact. Advise the infringer that their use of your material is unauthorized and a violation of your copyright. Insist that they immediately stop their use of the material. If that doesn’t work, formalize your position with a cease and desist letter from a lawyer.”
Simultaneously, while in touch with the infringer, Edwards advises, “You should contact the online host of the infringing material if it’s a third party, like YouTube or Steam, for example. They will have a ‘takedown’ process under the US Digital Millennium Copyright Act.”
He continues: “If communication doesn’t work and you haven’t been able to take the infringing material off the site, your only real option is to bring a legal action. This can be a civil suit (you take the infringer to court to obtain court orders for the payment of damages and an injunction to prevent further infringement) or a criminal charge (the Crown prosecutor charges the infringer under the Copyright Act).”
- Use the copyright systems in Canada and the U.S.
Animators in the United States and Canada can register their copyright online easily and inexpensively. This gives significant legal advantages and is a basis for a higher claim of damages if someone violates it or tries to steal your work. In the United States, this involves sending a copy of the work to the Library of Congress, which offers additional protection; in Canada, creators only register the title and a written description. That said, animators can register in both or either jurisdictions and it will be equally respected in both.
Edwards also explains, “Once you register, the law presumes you have copyright. It is the obligation of one challenging your copyright to prove you don’t. They have the burden of showing that it’s more likely than not that you do not have copyright.”
- Ensure you have all the rights of your IP earlier than later.
Often animators collaborate with other creators without any agreement about who owns what and how the property is to be shared. What they don’t know is anyone who helps create the concept has certain rights to it. Animators need to collect these rights to ensure they have full ownership of the project — particularly if you are going to a broadcaster, producer or bank for financing, who will all ask for a chain of title in order to move forward. Edwards advises animators to not be shy, put everything into writing and have collaborators sign an agreement assigning all rights of the creative concept to them. And the sooner they have these conversations, the better; if a project gets picked up, they may have to offer much more to secure those rights.
Edwards says, “Our advice is always the same: have those difficult conversations, raise the issue, be forthright with your contributors — that you are going to put in the time and energy to develop this idea that you worked on, to get it produced and distributed, and exploited and exhibited in some way. In order to do that, you need to satisfy all kinds of people that you have the rights to the creative concept. You have to say, ‘I’m going to need you to sign a release and transfer of your intellectual property to me.’ Then work out how you’re going to compensate your contributors for those rights.”
- Uncooperative collaborators? You still need an agreement.
In the case of a collaborator refusing to sign over their rights to an animator’s project, Edwards explains, “You could be stuck. You need to either make a deal with them or be able to prove in court that there was a deal –an understanding or agreement– even if it wasn’t written down. Remember that agreements don’t have to be in writing, they’re just a lot easier to prove if they are. They can also be proven by oral evidence or by showing that the parties behaved in a way that was consistent with the existence of an agreement.”
- Have your own NDA.
Animators pitching their creative concepts should have a Non-Disclosure Agreement (NDA) to protect their rights. Edwards explains, “It’s a very good idea for animators to have a relatively short and simple, plain language, template NDA. Whenever they discuss or pitch their concept to a production company, co-production partner or distributor, broadcaster or licensor, they should start by asking for the recipient to sign their NDA.”
That said, animators should be cautious of copying NDAs directly off the Internet. They do not know the context these NDAs were created under or which jurisdiction they were drawn up in. Though it is written in English, a contract could be from the United States, Canada, Australia, India — anywhere. Also, even if it sounds reasonable, animators may not know what’s been left out of the agreement and that could ultimately hurt them.
- When they don’t sign your NDA, get your rights acknowledged.
While copyrights don’t depend on an NDA, having the production company acknowledge an animator’s rights, and the terms and conditions under which they are disclosing the material (limited use, confidentiality) and provide for specific remedies (such as an injunction) if they breach the artist’s rights does help protect creatives. “The other significant advantage of an NDA is that it can be used to protect information and ideas that aren’t copyrightable,” says Edwards.
He notes that if an artist doesn’t have or hasn’t used an NDA, they can still communicate their position after the fact and establish that the information disclosed is copyrighted and/or confidential and proprietary. “You can communicate that it was disclosed to them in confidence and that they are prohibited from using it for any purpose other than your business dealings with them and that they are prohibited from communicating the information to others. Ask them to acknowledge and agree to the terms. They might or might not agree, but at least they are on notice,” says Edwards.
- Read EVERYTHING — especially submission release forms.
When pitching creative concepts to broadcasters or producers, animators may be asked to sign a submission release form. Those asking will say it’s just a standard document, but there is no such thing. Ultimately, these forms are created to protect the interest of the other party — not the animator.
Edwards tells us, “You should not sign a submission release form without reading it very carefully. Sometimes there are outrageous clauses that would allow the recipient to rip you off and there wouldn’t be anything you could do about it; others will make promises, but then have a clause saying if they don’t do any of them, they are not liable and you can’t sue them. Sometimes, these releases are so bad, it’s just not worth the risk to pitch your idea.
Do you have any animation legal questions you’d like to see answered in a blog? Let us know in the comments below!
This column is for general informational purposes only and is not to be construed as legal advice of Toon Boom, the writer, Mark Edwards or Edwards PC, Creative Law. Please contact a lawyer if you wish to apply these concepts to your specific circumstances.
Banner image credit: tiarawhy.
*The above information is most applicable to animators living and working in Canada and the United States.