“Good Artists Copy: Great Artists Steal”... How To Protect Your Creative Intellectual Property
You have had an idea for a new TV or film concept, you have mapped out themes, developed characters, written storylines, and perhaps put all this together in a treatment complete with sample animations.
You want to go out, show potential producers and financers, and get the show made. But how do you protect your idea?
There are a range of legal protections, offering differing protections over different, sometimes overlapping, elements. Each of these need to be considered.
“Good artists copy: great artist steal” is a maxim attributed to Picasso, although it appears that he stole the line from earlier writers. The point, of course, is that little in art and literature is truly original. Various commentators over the years have argued there are a limited number of basic literary plots that virtually every story published, whether in a novel, film or even folklore, can be categorised into. See, for instance, Christopher Booker’s The Seven Basic Plots - Wikipedia.
Beyond those basic plots, however, authors weave intricate stories, creating something original out of an initial idea. But the law of copyright does not protect ideas. What it does protect is the expression of those ideas. In particular, UK copyright protects a number of key types of creative expressions – for example, literary works, dramatic works, artistic works and films – from copying by third parties.
Literary works are text. So, the text of this article or the storyline of a book are protected as copyright works. Dramatic works are works of action capable of being performed before an audience – so a screenplay is protected both as a dramatic work and as a literary work. Artistic works include drawings and other material depicting characters, so a painting will be a copyright work as will each frame in an animation. Films are recordings in any medium.
In all of these cases, copyright protection automatically arises upon the recording of the work by its relevant “author(s)”.
The duration of such copyright in the UK and most European territories is 70 years from the death of the relevant author that created the copyright work, whether that be the writer or the artist (in the case of a literary, dramatic or artistic work), or the producer and principal director (in the case of a film).
For infringement of copyright to be demonstrated, it is necessary to show that a third party has taken the whole or a substantial part of the copyright work without its owner’s permission. In the case of a literary or dramatic work, such as a screenplay, this might include taking the overall storyline or chunks of text, either in a form of publication of that work in writing or in the performance of the work to an audience. In the case of an artistic work, this might include copying images of particular characters.
Exact copying is usually easy to prove, but things become harder where the alleged copyist has produced something different and there is no “smoking gun” to prove copying.
A copyist cannot take an original work and simply change it around a bit – provided a substantial part has been taken, doing this will still be infringement.
In practice, for copyright residing in a screenplay or the appearance of a cartoon character what constitutes a "substantial part" of that work involves a qualitative comparison between the original screenplay or appearance of the original image of the character and the alleged copy. Where it can be demonstrated that there has been copying of any distinctive features of the plot or the cartoon character, this may be decisive in demonstrating copyright infringement of the original copyright work.
Whilst in the UK and the EU copyright protection is automatic upon creation of the relevant work without the need for registration at an official registry, in the USA and certain other countries copyright is registrable before the local Copyright Office, making it easier to enforce and allowing additional financial remedies where infringement is shown.
In practice, demonstrating copyright infringement where there is no clear-cut copying can be difficult to establish. Because copyright law does not protect ideas, it has to be shown that a substantial part of your expression of an idea has been copied by the alleged copyist – two books expressing similar ideas will not be enough.
As a final word on copyright, be very careful not to infringe the copyrights of third parties. You must not, for instance, copy text and photographs belonging to others that you might find on the Internet. And changing or adapting someone else’s original work does not mean that you will not infringe it.
It goes without saying that if you do not show your ideas to anyone then, absent espionage, they cannot be copied.
For this reason, it may be best to keep your ideas close to your chest, and only to share them with those you trust.
Confidentiality obligations offer a means of protection, where a treatment has not yet been published or your programme broadcast. In order to be protected, your ideas must contain some significant element of originality, have been pitched in confidence, be clearly identifiable as the idea of the pitcher, of potential commercial attractiveness and sufficiently well developed to be capable of actual production. This need not mean a complex idea. In an Australian decision, for instance, a small “commercial twist” given to the hackneyed idea of a celebrity interview programme was protected in an action for breach of confidence.
Where you do share, keep a record of who you share with, mark your materials confidential and consider getting them to sign an NDA or Confidentiality Agreement.
Trade marks protect words or other signs that enable a business to distinguish its goods and services from those of others. So, for instance, POLO is a registered trade mark for different businesses in relation to clothes, sweets, and motor cars. It might make a name for a cartoon character too!
There are two aspects to trade marks that should concern you. First, the defensive: you do not want to use a title or character name that infringes someone else’s registered trade mark. Secondly, the offensive: if someone else tries to ride on the coat-tails of your success, perhaps through producing merchandise, then you will want to be able to stop them.
In the context of a cartoon, you should consider applying to register a trade mark to protect the title of your show and its principal characters (both their names and their likenesses, if applicable), as well as any distinctive logos. Protection should be considered not just in relation to TV programmes and films but also to cover merchandising and other goods and services.
Applying to register a trade mark is a significant cost. However, a registered trade mark is a potent weapon, and particularly in the online world: ‘takedowns’ issued online have much more force if you can point to a pre-existing registered trade mark that is being infringed.
A trade mark will typically take at least 5 months to become registered. Expert advice on applications is a must – DIY applications frequently go wrong!
In any event, and as a key defensive step, Hansel Henson’s trade mark team are regularly asked to carry out clearance searches, and these should be done before you go into production, not least because they are a prerequisite to obtaining E&O insurance and will be demanded by broadcasters, distributors and other publishers.
Finally, you should consider applying to register distinctive images of characters as registered designs. These are cheaper than registered trade marks and, though less essential, offer another facet to protection. Again, skill needs to be exercised in making the applications so as to protect key features that are liable to be copied.
Only ‘original’ literary, dramatic and artistic works attract copyright protection. Characters sketched out – whether graphically or with words - may well begin to attract protection in copyright, but only if they are sufficiently ‘original’. Producing a detailed and illustrated “treatment” covering in detail the characters and, at least in outline, the script and catchphrases, and perhaps even including storyboards and animations, will mean that you have something that attracts copyright protection in its own right.
Once your creation is taking shape, and you have created your treatment, you may well be keen to tell the World about it.
For instance, you might be tempted to create a website or social media account or put some animations on Vimeo to show potential backers and producers what you are working on. After all, doing this enables you to show off your work in an attractive and easy to access format. Of course, the difficulty with doing this is that you are exposing your creations to potential copycats before you are ready to commercialise your creation.
So, in many ways, the longer you can keep your creation secret the better. In particular, you want to have embellished your ideas before making them available to potential copycats. If you are going to publicise before it is ready for commercial release, then, to quote the famous cartoon character, make sure you have an “oven ready” product.
Similarly, before providing your material to potential commercial partners, satisfy yourself that the people you are sharing your work with are trustworthy. Keep records of what you disclose and to who (including any email you send) and, if in in doubt, request that a confidentiality agreement (also know as a non-disclosure agreement) be signed.
Whilst copyright arises automatically and marking something as your intellectual property is not necessary to protect it, making clear that you own the IP in something is an easy way to deter potential infringers. It also shows that you are being professional in the way you are going about things. For example, to protect a piece of work of ours from both a copyright and confidentiality perspective, we might write:
© 2021 Hansel Henson Limited
STRICTLY PRIVATE & CONFIDENTIAL
NOT FOR PUBLICATION OR ANY OTHER DISTRIBUTION
“HANSEL HENSON” IS A REGISTERED TRADE MARK
These offer a high degree of protection for programme titles and distinctive character names, catchphrases and logos. Provided they are sufficiently distinctive, trade marks can be registered throughout the world in order to protect not only in relation to TV and film production, but also ancillary rights such as for merchandising. The only difficulty is that, unlike the other protections discussed here, a comprehensive portfolio of registrations can be expensive – you need to be tactical in your approach.
All too often, expensive disputes arise as a result of bad, ill-advised contracts. Developing a first-class film requires time and expertise and so too does ensuring that your contractual position is secure.
If, as is often the case, your new TV or film concept is a collaboration between a writer and an illustrator or perhaps a financier or other people, then you need to make sure that you have agreement between you.
As a minimum, you should have some sort of internal business plan agreed between you, so that you do not have different goals. Ideally, you should also have agreement on who owns what, how control is exercised and what the splits will be on future investment and income. If you are pooling the assets in a company, then this will usually be set out by a solicitor either in a shareholders’ agreement or, if you are not using a company, in some form of partnership agreement. You do not want to reach the stage of getting the thumbs up from a commissioner only to fall out amongst each other over the vision of the future!
On the other hand, if you are going to own the entire project, but are a writer who buys in the services of an illustrator, or an animator who buys in the services of a writer, then you must obtain a written assignment of copyright in order for you to own their work. Assignments of copyright should also be used if a company is going to own the project.
Development, commissioning, production, and licensing and merchandising agreements will, provided they are well-drafted, help all involved in the exploitation and creation of rights understand what they can and cannot do in relation to those rights.
One of the specialists at Hansel Henson will be pleased to assist you with these agreements and all the other matters set out in this note.