WIPOD – Intellectual Property Matters: Transcript of Classroom Conversations – Episode 7

IP Basics for Content Creators

Karen Lee: Welcome to Intellectual Property Matters. In this WIPO podcast, we explore the fascinating world of creativity, innovation and intellectual property. Let's listen, learn, and get inspired.

Natalie Humsi: Hello, everyone. Thanks for tuning in to today's episode of Classroom Conversations, a WIPO Academy series, and I'm joined today by Professor María de Lourdes Vazquez. She has a formidable background in copyright law, and even was the intellectual property counsel for the Rolling Stones. María is the Dean of the Law School at the University of San Andrés in Argentina, and the Director of the WIPO Academy Joint Master’s Degree Program in Intellectual Property and Innovation offered with the University of San Andrés and the National Institute for Industrial Property of Argentina.

So today, we'll be talking about the intellectual property (IP) basics that content creators need to know. And the key things they need to keep in mind before releasing their next TikTok, YouTube video, podcast… you name it. Thank you so much María, for joining us today. Can you briefly explain why a content creator needs to know about IP?

María de Lourdes Vazquez: Yes. I love this subject in fact, because there's so much going on today. And I do think that as a content creator, understanding the basics of IP is actually crucial, but not only to avoid infringing on the rights of others, but also to protect your own creative work.

So today we'll be speaking mostly about copyright, which is one of the three primary types of IP. And most people, I think most of our listeners, will probably know something about copyright. But I thought I would give you a little bit of the basics. People often question why the exclusivity. What is the purpose of copyright? So I'd like to dispel some doubts about this.

Copyright protects original creative works, such as artworks, literary works, music, video, software, and copyright will grant the authors and the composers and the software developers and the website designers and all creators exclusive rights. And these rights include the right to reproduce, to distribute, to display, to communicate, to perform the work, to put it on the internet, to take it off the internet.

So Why the exclusivity? What is the purpose of copyright protection? Well on this, the US constitution is very clear when it says the purpose of copyright is to promote the progress of the arts and sciences. And in civil law countries like my own, you know Natalie that I'm from Argentina. Well, we tend to view copyright as a sort of an entitlement of the creator. It is almost very linked to the personality of the author. And common law systems, on the other hand, probably look at it from the social contract point of view.

But these characterizations, as Jane Ginsburg says, are largely caricatures because in the end, the real purpose of copyright, the fundamental objective, is to promote creativity and to contribute to cultural development.

Natalie Humsi: And what are the basic elements of copyright, and why are they relevant to someone who's a content creator, for example?

María de Lourdes Vazquez: Well, I thought we could start by the basics, which is understanding the difference between an idea and the expression of an idea. This is always sort of the first class in copyright, and it's very simple, but it's actually quite brilliant. An idea refers to a general concept. It's like the abstract thought. It's a theme. It is the underlying concept behind a creative work, and copyright law does not protect ideas. Ideas are free to be explored by everyone. They're in the public domain, and this is actually a great thing, that anyone can explore an idea and make that idea his or her own. Whereas the expression of an idea, on the other hand, this refers to let's say the specific way in which an author or a creator chooses to express or manifest this idea in a tangible form.

So copyright will always need that tangible form, that expression of the idea. Copyright will protect the expression of ideas, but not the ideas themselves. And then one other point that I have to actually mention before we go on is this other requirement. So on the one hand, copyright says it has to be an expression of an idea and not just the idea. But on the other hand, the work has to be original. And it's very important for content creators to develop, to focus on developing and expressing their ideas in an original way, in a unique way, to incorporate those creative choices and make that work their own.

People always say, you know, what’s the definition of originality? It's very hard to define. It reminds me of when in the Supreme Court of the United States, they were trying to define obscenity and one of the justices says it's very hard to define obscene, but I know it when I see it. And this is a bit what happens with something original. You know it, when it's original, right?

In the end, legally, the requirement for originality is that there is independent creation. That is that the work is a product of the author's own effort. And it also must have a little spark, that minimum level of creativity. That's very important. As I was saying in our countries, in civil law countries, we say the work has to reflect that author's personal touch, his own creative choices. In Spanish, we say “la impronta del autor”, the author's imprint, like the author's seal. I like that. That it is something really unique to the author.

And just before we finish this first part, I would also say something that's very important: copyright does not last forever. How long does copyright protection last? Well the duration of copyright will vary from one place to another. But let's just start to give our listeners a basic idea by saying that in many countries copyright protection lasts for the life of the author plus 70 years.

This is true in the US, in the UK, in most of the EU, in my country, in Argentina, and in most of Latin America, Brazil, Costa Rica, Ecuador… they all say life of the author plus 70 years. In some countries, it's shorter, like in the Caribbean, life plus 50, in some countries, it's longer. In Mexico, it's apparently life plus 100 years after the death of the creator. So each country will have its own general rule, but then there'll also be exceptions. Sometimes there are specific regimes for certain works such as photographs, audiovisual works, etc.. But the important thing is that copyright does not last forever, when a copyright on a work expires, the work is in the public domain.

And that notion of public domain is also important for content creators because these are works that are not protected by copyright or whose copyright has expired or been waived. So when a work is in the public domain, anyone can use it. They can copy it. They can modify it. They can distribute it freely. We don't need to seek permission from the author or the original creator or the copyright holder.

And in this sense, I was just thinking of an example of this, of public domain. So let's take a fairy tale, a very well-known fairy tale like Cinderella. So Cinderella has been around even from before the Grimm Brothers, and yet, many works, many stories, books, films have been created from the idea of Cinderella… the basic theme, the basic story.

And all of these different adaptations, either as the Disney classic in the 1950s, then there was a very nice version, and you may have seen it, although you're a bit young, but maybe, it's the film Ever After. It was in 1998 with Drew Barrymore. It’s a very nice film, and it takes the story back to the Renaissance in France. It focuses on Cinderella’s strength and her independence. Then we have like the teen version, the rom-com, the romantic comedy version, A Cinderella Story in 2004.

Recently, there's a new Disney version, a live action version with Lily James. This was a couple of years ago. So, yes, what I'm saying is all these adaptations are based on the same ideas, the same themes, on a story that's in the public domain, but each author, each screenwriter, each adaptation stands on its own. It's a distinct work, and it does not infringe the copyright of others. So I think that this is also an important concept for content creators to keep in mind.

You can use ideas from previous memes from previous stories, reels, etcetera, but make them your own. Take that idea and turn it into something original, and yours, and unique.

Natalie Humsi: Wow. And I'm thinking now, like, a big struggle that content creators face are copyright strikes. So when it comes to copyright protected content, what are things that our listeners should look out for when they're making their next video, for example?

María de Lourdes Vazquez: Oh yes, absolutely. Well, as a web content creator, when you're using platforms, TikTok, Twitter, or any other social media, I always think maybe the first rule, which is great, is if you can focus on creating and using content that you actually have the rights to. This will obviously avoid any potential copyright infringement. But this also begs the question, and I don't want to leave this out, is how you should protect your own work?

Well, of course, even though copyright protection is granted automatically upon creation, you should register your work with your local copyright office because registration will give you that legal security, that benefit or legal remedy in case of infringement. Now if you do, on the other hand, choose to use copyrighted material. This is very common on the internet using images, videos, music, or text that you have seen. Well, you should do so with the authorization of the copyright holder of those images or music etcetera. Let's say you want to post a video with someone else's music. Well, this isn't actually allowed unless you have that authorization.

And in music, I also think it's important for people to know when we are re-posting music that is a musical recording. There are actually two copyrights that are included in that music. On the one hand, the copyright in the composition. So either a composer or music publisher would have to give you the authorization to use that composition. Or and on the other hand, you have the copyright in the musical recording. So, yes, that's something that you have to keep in mind.

But as long as we're talking about music and TikTok, etcetera, well…What music can I use on TikTok? That's the basic question. And often, you know, I have children and the young people in my house often ask me what am I allowed to use? Because I'm constantly talking about copyright issues at the dinner table. And what they can use, in fact, is that TikTok has a music library with music that obviously TikTok, the platform has licensed for their end users to use in the TikTok videos. And of course, in the use of that music library, there is no risk of copyright infringement. But be careful. You can't actually take the music from the TikTok music library and use it on other platforms

Instagram, for example, in its terms of service, it will also say that you can only use music from the Instagram music library for the Instagram reels for example. So this is important. And also otherwise, just simply use your original audio. So if you include a song in your video that is not in the TikTok library or is not properly licensed, TikTok may mute the video or take it down, or you may receive a cease and desist letter from the performance rights organization that handles the licensing for the song that you used. So this is what happens in music.

Now let's think about memes for a moment. I always enjoy memes on the internet and I've been through so many of these famous memes. You know, I was thinking back on the famous series of the cat memes that had the “I Can Has Cheezburger?” text. Well, these gained popularity in 2007. Now let's say, of course, what was behind this meme was the idea of a cat with an intentional misspelling and bad grammar in the caption, so what can I do if I want to join in the fun with this meme? Well, what I can do very much, and legally, and what many people did is take a picture of their own cats, for example, someone posted a picture of two cats I remember and wrote the text “We're getting meowied”, like it was a play on words from married, but using the word meow. Anyway, but the funny thing here is that they did not infringe any copyright. They took the idea from an existing meme, and they used their own creativity, and used their own photo, and used their own text, but with broken grammar, with a sort of pun with words. Well that of course is absolutely allowed. And you can do that without infringing on anyone's rights. Use the idea of a meme and make it your own. And this, you can see so many of these came out.

We have the “Distracted Boyfriend” memes. We also have the ones that came out with the Real Housewives. They used an image of Real Housewives of Beverly Hills. It was called “Woman Yelling at a Cat”. We can take this rule for all of these types of memes. Now if we're going to use the original photograph from a meme or the specific caption, if we're going to repost that meme, well, the original creator of that meme is the one that holds the copyright to their specific expression, and they have exclusive rights on this. They control its reproduction and its distribution. So you'd have to ask permission if that's what you want to do.

Natalie Humsi: Okay. So I would have to ask the Real Housewives of Beverly Hills for the original permission to use that photo in a meme, for example?

María de Lourdes Vazquez: Well, in that specific case, it's actually kind of funny because someone posted that without the authorization of the Real Housewives. So what can happen is that Real Housewives of Beverly Hills could actually oppose it, but sometimes the copyright holders may be happy to have something circulating that gives them additional publicity. Perhaps, sometimes not. So you're always going to have that issue.

Natalie Humsi: And what is this concept of fair use? Can it be something useful that a content creator can rely on when using copyrighted content, for example?

María de Lourdes Vazquez: Well, yes of course. This does not mean what we're talking about, that our listeners can never use a copyrighted image or music in their content without permission. On the one hand, we have limitations to copyright law.

These limitations in our civil law countries, for example, are usually a closed catalog of exceptions such as the right to use quotations, and this is a very specific right that permits the use of short portions of copyrighted material. Educational use, which will permit use for educational purposes. Press and news reporting, these are exceptions that allow the use of copyrighted work for reporting news. But always remember these exceptions are usually very narrow, and they will probably not justify the use of a meme, for example, on social media or a video on TikTok.

On the other hand, in common law countries, there is this system of fair use instead of having a closed list of exceptions, copyright law has a flexible system with four fair use factors. And the fair use system allows for limited and transformative uses of copyrighted material. But for very specific purposes such as criticism, commentary, let’s say news reporting, research, teaching, parody.

There are four factors of fair use that are taken into account. On one hand, the character of a use. Is it a commercial use or a noncommercial use? Because noncommercial uses are often looked at more leniently by judges. They're often more likely to be considered fair use.

And then the nature of the work, if we're talking about facts or informational works, well they will also have a more lenient treatment than a very creative work, a fictional work. Then the amount of the work being used and how substantial it is. That will also be important. And then the fourth factor, which is the effect on the market. Is the use that you are making of this copyrighted work going to have a potential impact on the market value of the original work, of the preexisting work?

So there are clearly, if you are going to be competing with the original work, well, that is likely not going to be considered fair use. And here comes what often my students call the “belle of the ball”, transformative use, the fifth factor, which is also contemplated often within the first factor because it has to do with the character of the use.

So fair use will favor transformative uses. But what is a transformative use? Now in here is where on the internet, there are often misunderstandings. Transformative use is not just changing something aesthetically, perhaps making it prettier, more attractive, more cool, more fashionable, trendier. No. It is actually when the work is repurposed, used in an unexpected way. And principally, and I think this is what's most important.

And this is the test that came out of this famous case, you know, the Pretty Woman case. The Campbell vs. Acuff-Rose Music case. Well, the test is whether the new work is altering the original with a new expression, a new meaning, a new message. This is the big test. Is there a new message? If I don't allow this use of the work, am I actually curtailing your freedom of expression? Are you really trying to create a new expression of a new message? Content creators sometimes think that transformative use will be a sort of blanket justification for using copyrighted material without permission. Well, it's not the case. That's not how it works.

And recently, we see that in the Goldsmith vs. the Warhol Estate case, which reached the Supreme Court. Well, this case raised questions about the extent to which Andy Warhol’s use of Lynn Goldsmith's photo, of the rock artist called Prince, whether this qualified as fair use under copyright law. The Supreme Court ended up holding against the Warhol Estate. The fact that Warhol had transformed a Goldsmith original photograph into a series of colorful silkscreen prints, but was there actually a new and different message? Was it in fact not just a new and different aesthetic? So I think that this is very important.

There are no clear guidelines to fair use, to transformative use, on the internet. There is very little case law regarding internet content creators when it comes to fair use. You may recall an old case, Lenz vs. Universal Music.

A mother had posted a 29 second video on YouTube of her toddler dancing to the Prince song, once again Prince, the Prince song Let's Go Crazy. It was playing in the background. But this video was flagged by Universal Music. It taken down. The mother, Stephanie Lenz, she filed a lawsuit saying that her video was fair use because the video's purpose wasn't to infringe on the song, on the market of the song, but to share a personal moment. And the use of the song was minimal. We may have thought that we would have some interesting case law in this regard, but the sentence primarily just ended up focusing on the obligation of copyright holders to consider fair use before a takedown notice according to the DMCA. Rather than giving us any clear guidance on the extent of permissible copying under fair use for internet content.

So the conclusion is if you want to use someone else's copyrighted material, you have to seek permission from the rights holder. Now you can contact them directly, or often you can use creative commons licenses or other open licensing frameworks. This is commonly used on the internet.

Natalie Humsi: So what are those creative commons licenses? What does that entail for our listeners?

María de Lourdes Vazquez: Well, creative commons is a licensing framework. It gives content creators a way to share their work on the internet granting certain permissions and freedoms to users, but also setting their limits. I think it's like an alternative to the typical all rights reserved, which is the copyright.

There are often bands that post their music on the internet. They actually want users to download their music so perhaps for them, all rights reserved under copyright doesn't really work. They actually want for internet users to download and to play their work, but they will say, but please no commercial uses of my work. That's something, and they want to be attributed for the work.

So they may use a creative commons license. Here, they would have to choose between a range of licenses and setting the conditions under which others can use, and distribute, and modify, or build upon their work. Because with these licenses, content creators can even allow others to modify their works, even to create derivative works.

So in a sense, these licenses encourage collaboration, remixing, the creation of new content, but always keeping the entitlement in the hands of the copyright owner. The copyright owner can decide which of these licenses to give. And they're also very user friendly because they have these very easy to understand and standardized icons or systems, representing the different licenses.

Natalie Humsi: So that would be the go to solution for a content creator, like their first source of options that could be problem-free or less problematic, let's say.

María de Lourdes Vazquez: Yeah, absolutely. I think it's a very good option, you know. And there you say yes, but I do want to have attribution, for example. Attribution means giving the appropriate credit to the author, to the creator of the work. And you can also say non-commercial use. You can say share alike or no derivative works. It gives a lot of power to the creator, but it also gives the creator freedom.

Natalie Humsi: Before we wrap up, I wanted to talk about AI, the rise of ChatGPT, and other AI tools, and a lot of creators are using these technologies to produce content. And off the top of my head, I'm thinking of all these trending TikToks with AI generated art. Do you have any final thoughts on creating with the help of AI and new technologies?

María de Lourdes Vazquez: Oh, yes. Oh, Natalie, when it comes to content creators, and the use of AI technology and copyright. I mean, let's do a whole new podcast on that. I mean, that's just a great subject to talk about. But, yes, IP is only one of the worries when it comes to the use of AI, because I think there are also several ethical concerns.

In fact, if you actually sort of punch this in to ChatGPT, for example, ChatGPT will be very quick to tell you the ethical concerns that there are with using systems such as ChatGPT or, using AI technology in general. So I think one thing that's very important and that I took into account when I was thinking about these things, and when I write about these things, is that one of the things that ChatGPT says you have to be very careful with is transparency. Content creators should be transparent about their use of AI in their creative process. I think that's important. Also, attribution. So if you are generating creative works, it's also important to credit and give proper attribution to the AI system on the one hand or the developers who created it, but also to the input that you're using in order to create this output. I think that that's also important.

And one of the other big issues with AI technology is the bias. I'm sure you've read about this, but I find it quite fascinating because AI in a sense gives us a mirror of what our internet looks like today and what is actually on. And AI systems can inadvertently perpetuate biases. And these biases are what are already present in the training data. Yes. In Spanish, we say “sesgos”. This is very important, I think. Make sure that when you're using AI technology that you are not perpetuating the biases that already exist.

And then, of course, copyright concerns. We've been talking about this for a while. And so you have to ensure that you have appropriate licenses and permissions of the datasets that you're using. And also, there are privacy issues where you need consent, making sure that you have consent from individuals and that you comply with privacy regulations. And then always whenever you use AI, I think human oversight is so important. I mean, I'm sure it's happened to you Natalie, that you ask ChatGPT for something, and even OpenAI, everyone, admits that there are many errors still in AI technology, and they will venture out to give you a reply no matter what… if it's correct, if it's incorrect. So there is a huge importance in overseeing this, in the humanity involved in this, in overseeing what's going on.

And make sure that what is being created is actually reflecting on your imprint as a creator. When I go back to what we talked about with originality and creativity, I find that content creators have this great opportunity to be creative, to put on the internet their own creative thoughts. So I would say take advantage of that.

I don’t want to finish without talking, at least very briefly, about what Ghostwriter did with the fake Drake, using Drake's voice and using what is called voice appropriation, or voice misappropriation, we could call. There was also a song with the voice of Bad Bunny and Rihanna. It's actually quite fascinating how this is done, and it opens up this whole idea of what's going to be coming, like voice licensing.

Imagine that perhaps, let's say one of our favorite artists who is now no longer with us, well, the estate of that artist will be able to actually do voice licensing. To put out new music with for example, an artist's voice, an artist who is no longer with us. I think that's quite fascinating. But in any case, those songs that Ghostwriter, a content creator called Ghostwriter, put out were taken down from TikTok and other platforms without first having had many, many views on them. But they were taken down, and I think this is interesting, not based on copyright law, but based on the right of publicity.

Now there's a clear precedent in California at least that a musical impersonation of a famous artist's voice violates that musician's right of publicity. This brings us to the very famous case that Bette Midler brought against Ford in 1988. Ford wanted to use a Bette Midler song, Do You Want to Dance? it was the song, and it was very much in her style. And she didn't want to license it and they ended up using an impersonator to sing it. So the court's ruling was that when you have a distinctive voice, as Bette Midler does, as Drake does, as Bad Bunny does, and Rihanna does. Well, if it is very distinctive, and it is being intentionally imitated, well, that's a violation of your right of publicity. This kind of thing will be common from now on.

Well I just thought I'd end Natalie by thanking you so much, and thanking the WIPO Academy for inviting me to these Classroom Conversations. You know that I'm very passionate about these things, so I love to talk about them and to share thoughts with you, and to ping pong some of these things. Meanwhile, I'll also put in a little pitch for our Master's Program that we do along with WIPO. It is here in Buenos Aires. It is a Master's in IP and Innovation and it's really a great program. So you're all invited to tune in also to what we're doing over here in our Master's Program and in our Center of IP and Innovation regionally here in Latin America. So thanks very much, Natalie.

Natalie Humsi: Thank you so much, María, for all these insightful thoughts. This brings us to the end of our Classroom Conversation for today. Thank you so much again for this excellent explainer of copyright essentials for content creators. And most importantly, thank you to our curious listeners for tuning in, and we'll catch you all next time on Classroom Conversations.