Creation from imagination is the basis of intellectual property

From The Creative Penn:

How can you future-proof your author career by being careful with the publishing clauses you sign? Why are NFTs so interesting for intellectual property? How might DAOs help authors with estate planning? Copyright and trademark attorney Kathryn Goldman talks about these things and more.

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Transcript

Joanna: Kathryn Goldman is a copyright and trademark attorney, and has worked in intellectual property for over 30 years. She runs creativelawcenter.com, which offers resources, workshops, and advice for creative professionals, including authors, artists, designers, and more.

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Joanna: I’m so excited to talk to you about this. Let’s start with more of an attitude question.

Let’s say metaverse/web3/whatever we’re going to call it in the future. What do you mean around that? What do you mean by given up their rights?

Kathryn: Publishing contracts are license agreements between an author and a publisher, and in that license agreement, the author grants to the publisher a group, a bundle of, or part of their copyrights in their creative work. And publishing contracts are dense with language.

In those grants of rights, there are these broad provisions that encompass future technologies. And so, if there is a publishing contract that was drafted and signed 10 years ago, that includes language that encompasses future technologies unknown at the time, then the author may have already agreed, with that language, to allow a publisher to mint an NFT of her work without even knowing what an NFT was at the time.

So it’s possible that there’s language embedded in the contract already, covering future technologies, that would give the publisher control over the creative’s NFTs.

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Joanna: Why are you so interested in this intersection between web3 and intellectual property?
Because I’ve seen so many people shying away from it and saying it’s just not happening. But you embrace the change. So, why is that?

Kathryn: I embrace watching the change. It is happening. You cannot turn your back on it right now, but mostly what’s intriguing me is that people’s imaginations have caught fire in a way we really haven’t seen for a couple of decades, or maybe a decade.

People are taking this technology and doing things with it that are just limited only by their imaginations, and that is what is fun to watch. It’s the creation, from imagination, that is the basis of intellectual property. That’s why I am just loving what’s going on these days.

[Joanna: You have written:]

“Authors who have signed publishing contracts may have already given up their right to control their work in the metaverse.”

Let’s say metaverse/web3/whatever we’re going to call it in the future. What do you mean around that? What do you mean by given up their rights?

Kathryn: Publishing contracts are license agreements between an author and a publisher, and in that license agreement, the author grants to the publisher a group, a bundle of, or part of their copyrights in their creative work. And publishing contracts are dense with language.

In those grants of rights, there are these broad provisions that encompass future technologies. And so, if there is a publishing contract that was drafted and signed 10 years ago, that includes language that encompasses future technologies unknown at the time, then the author may have already agreed, with that language, to allow a publisher to mint an NFT of her work without even knowing what an NFT was at the time.

So it’s possible that there’s language embedded in the contract already, covering future technologies, that would give the publisher control over the creative’s NFTs.

This analysis, this concept, is not without precedent. The same thing happened with e-books. Before e-books were commonplace, there was language in publishing contracts that gave publishers the right to control the creative work in unknown or yet-to-be-known technology. So, about 10, 20 years ago, the battle over can a publisher publish the e-book of a work was fought.

Link to the rest at The Creative Penn

PG will comment that, some time ago, he was involved in many more than one argument regarding whether a publishing agreement covered ebooks or not. Without compromising any client confidences or violating any client obligations to keep these sorts of matters confidential, PG can say that on frequent occasion, the publisher had done such a bad job on its standard publishing contract that PG was able to convince publisher’s counsel that the publisher didn’t actually have the right to license ebooks because the contract only talked about selling ebooks and ebooks are always licensed by those whose business is to find people to acquire ebooks.

For the record, PG isn’t doing anything in this sphere any more.