Du Malone writes: The field of content creation around FM is flourishing. There are podcasts, videos, livestreams, designs (kits, logos, skins), and databases. Blogging, in particular, is booming, FM Library’s burgeoning list shows.

All of which is great — but I do have one concern: people may, in their enthusiasm, be disrespecting intellectual property (IP) rights — and, potentially at least, incurring liabilities as a consequence.

Disclaimer

Before I go any further, let me make clear that I’m not a lawyer or any other kind of expert on IP.

Please don’t rely on me for guidance.

If anything I write here resonates with you, please professional advice.

What exactly are we talking about?

Several IP and associated laws might impinge on FM content creation. They include:

  • copyright: do you own all of the content (e.g., photography, music) that you use? if not, are you licensed to use that material?
  • design rights: if someone has worked to create a certain look, you can’t assume that you can use that look without permission
  • trademarks: owners of trademarks have the right to control their use
  • passing off: are you leading your reader to think that your content is associated with a brand when in fact that isn’t the case? For example, ‘Dummies’ is a brand, so presenting your content as a Dummie’s guide to something could mean you find yourself in hot water.
  • plagiarism: are you (perhaps through carelessness, rather than intention) presenting someone else’s text as if it’s your own?

So what? Is there any actual risk?

Not necessarily.

For example, the Sports Interactive website states that ‘SEGA and the SEGA logo are either registered trademarks or trademarks of SEGA Holdings Co., Ltd. or its affiliates. SEGA is registered in the U.S. Patent and Trademark Office. Football Manager, the Football Manager logo, Eastside Hockey Manager, the Eastside Hockey Manager logo, Sports Interactive and the Sports Interactive logo are either registered trademarks or trademarks of Sports Interactive Limited‘.

Are they going to pursue everyone who uses the phrases listed here? For the purposes of this website, I’ve assumed not (though I don’t know that for sure).

But years of working in the communications industry has taught me that people often underestimate the risks. And my guess is that hobbyists are among those likely to do so.

For example, I regularly listen to podcasts that make use of music and I find myself thinking, ‘Are they licensed to use that music?’

And, even if they are — for example, through a Creative Commons licence (explained below) — they’re certainly not providing acknowledgement to the creator. I can’t remember the last time I heard a podcaster do that.

What might be examples of danger zones?

Personally, I’d be particularly careful if:

  • I was deriving any kind of income from the content. That could  include, incidentally, revenue from hosting advertisements
  • Use of IP that put the owner of the IP, or one of the owner’s brands, in a bad light.

Note that the second of these could be inadvertent on your part. There may be an unfortunate juxtaposition of images. Or your text may be ambiguous in ways you hadn’t intended. Or your stuff may just not be very professional and so associate a brand with amateurism or even shoddiness.

I’d particularly like to alert fellow creators to dangers concerning photography. There are definitely photographers for whom the pursuit, with the help of attorneys, of people making unlicensed use of their work is part of the business model.

All this imposes constraints of our creation of content: are there any creative solutions?

Yes. The Creative Commons initiative exists to make it possible to make use of other people’s content legally. For example, a photographer might make images online and then license users, such as FM content creators, to use them free of charge.

There are a variety of licences in use. For example, licences that enable you to use content provided you:

  • attribute the work to its originator
  • and/or don’t seek to gain commercially from it
  • and/or don’t seek to alter it.

Many variants are in play.

More detail is available from the Creative Commons (CC) website.

I’d certainly encourage content creators to explore their search engine.

A constructive coda

I’ve framed the above discussion in somewhat negative terms, by focusing on such matters as infringement and risk.

But there’s also a positive perspective available. If, for example, someone taken a beautiful photo and gone to the trouble of making it available online, isn’t it nice to not only use their work but also credit them?

Intellectual property is, after all, a matter of ethics as well as legality.

So I’d like to end by giving fellow creators a nudge. If you use other people’s content, within the law, how about going beyond the duty of attributing their work and actually showcasing them?

For example, if you write a blog, write a post to draw attention to their work. Tell people what’s good about it. Provide a link. Or in a podcast say a few words about the CC music you’re using and where it, and its creator, can be found.

Taking it further

Laurence Lessig (a law professor at Harvard) is a leading commentator in this area, especially in relation to creative commons.

Several of his presentations, for which he has become famous, are available online. I think ‘Laws that choke creativity‘, which focuses on the development of culture from a ‘read-only’ model to a ‘read-write’ one, is particularly like to resonate with content creators.

 

 

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