Everywhere you turn, there is a new movie based on a fictional comic book or other character. This past weekend’s box office numbers included $18 million earned for Guardians of the Galaxy and $16.8 million for Teenage Mutant Ninja Turtles, according to The Hollywood Reporter (weekend ending August 24, 2014).
What should you do, as an aspiring writer or illustrator, to make sure that what you write or draw will earn you the money you deserve? Here are the top five things to consider in order to protect your literary and illustrative rights to the fictional characters you create.
- Create a memorable and unique character
- Research on the competition
- Have a contract
- Protect yourself with intellectual property status
- Enforce your rights
Number 1: Creating Your Character
Before anything. Before you worry about the contract, the royalty checks, the movie, and the notoriety, you have to create a character worth remembering. More than almost anything else, it is a unique character that will ensure protection for you.
Number 2: Check the Competition
Do some research and take a good look at the competition. Dig deep into why some characters are recognizable and survive for decades. This is also a good exercise to make sure that the character you are creating does not inadvertently infringe upon another’s character.
Number 3: Contracts
Having a valid and enforceable written contract is almost, without question, better than an oral contract and is certainly superior to no contract at all. While both written and oral contracts can be enforced legally, figuring out who said what in an oral agreement is difficult to prove if you decide to go to court based on a conversation.
At the very least, if you enter into a contract with another to either perform work for them or to commission the work of others, try to make sure that, at the very least, your contract contains information about the following:
- What are the services to be provided?
- When is the work due?
- What is the fee?
- Make sure that the relationship between you and the other party is clear
- Identify when the contract ends
- Try to include some direction about what happens if something goes wrong
This is not a finite list, but it is worthwhile putting a contract together to make sure that everyone understands and identifies expectations.
Number 4: Protect Yourself
For the most part, what you write or draw, may be protected by intellectual property rights, which exist apart from a contract. The source of intellectual property rights in the United States is the United States Constitution, Article I, Section 8, which says:
To promote the Progress of Science and Useful Arts, by security for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
There are four intellectual property categories: 1) Copyright; 2) Trademark; 3) Patents; and 4) Trade secrets. For purposes of this article, only copyrights and trademarks are covered.
Copyright protection may be granted to:
[O]riginal works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Copyright protection is intentionally broad in order to meet Constitutional goals. It is also possible for two people, simultaneously, to have the same idea and fix that idea in any tangible medium of expression, and those two people to be equally entitled to a copyright interest. This is because there is no such thing as a copyright in an “idea.” Once you have written down your story or drawn your character, it is only that manifestation which is protected – it doesn’t prevent anyone else from thinking about those things that you drew or wrote about.
You don’t have to register your work with the Copyright Office at the Library of Congress in order to claim rights to it. However, if you do register your work, you will have the advantage of being able to show when you filed the work with the Copyright Office and will be entitled to legal benefits not granted to those who have not registered.
A trademark is:
[A]ny word, name, symbol or device or any combination of them that serves to identify and distinguish the source of one party’s goods or services from those of another party.
Trademark rights are the exclusive rights to use a mark in commerce to distinguish your goods and services from another. Trademark rights are established when the trademark is used “in commerce” as in when the trademark is used to promote or sell the good or service it represents.
Trademarks protection is similar to copyright protection with regard to the fact that there is no requirement to file your trademark with the United States Patent and Trademark Office in order to get legal protection. However, you will be entitled to enhanced legal benefits if you do file.
Number 5: Enforcement
Once you have your contracts and establish your copyrights and trademarks, what do you do if a party to your agreement doesn’t perform as promised or if someone infringes on your copyright or trademark? You enforce your rights!
This doesn’t mean (necessarily) to run to an attorney and file a lawsuit. Almost without exception, you should try to resolve the problem yourself. If the other party fails to work with you and you have reason to believe that your rights have been infringed upon, it may be worth an investigation by an attorney, who may review all your documents (email, text messages and voicemail messages) to determine whether you may be successful in pursuing a legal claim. You should be prepared to identify all the ways in which you think your rights have been infringed, and how much, in terms of monetary and other damages, you have lost because of the infringement.
Hopefully, this article will encourage you to take charge of your rights in your creative work. Don’t be afraid to ask for a contract or make sure that what a person says is reflected in it. At the very least, investigate copyright protection for your writings and illustrations. It is pretty inexpensive (only $35!) and will go a long way toward securing your share of a future summer blockbuster weekend’s earnings!