Creators. That’s the hot new term in marketing circles. Advertising through a creator is highly effective because each creator has a curated audience interested in one specific thing or another. But creators aren’t just people with a lot of followers on social media. Creators make copyrighted works. And they make money by licensing the copyrighted works or by giving product endorsements. Creators are actually small business owners that run a specific type of business: the creator business.
This blog post is the first in our new series on how to run a creator business. We’ll start with some basic information on copyright, trademark, and right to privacy/right to publicity (used for endorsements). We usually encourage entrepreneurs to focus on their product or service when they start a business. We tell them not to worry about the law at first. But a creator’s “product” is a copyright, or a trademark, or even their name or image. So, it’s good to have some basic understanding of these areas of law.
Our articles are not legal advice. Only a lawyer who understands these specific types of law can give you the targeted advice you need. What we hope to do is to give you a good foundation. This way, when you do talk to a lawyer, you can ask your questions quickly and precisely.
After this intro article, we’ll have two more intro articles. One will look at the leading platforms for creators to showcase their work and how these platforms pay creators. The other will cover other ways creators can make money, such as working with advertising agencies and what some common clauses in IP licensing contracts mean.
What won’t we talk about? How to acquire followers. We haven’t discovered that particular secret. Yet.
But let’s start from the very beginning. Who, exactly, is a creator?
Who Are the Creators?
Believe it or not, it’s not easy to define creators. Many creators are traditional artists, but not all traditional artists are creators. And some creators are not traditional artists at all.
What do we mean by this? Well, here are some examples of creators:
- Bloggers
- YouTubers
- Influencers
- Podcasters
Let’s dig a little deeper. What if a history teacher videos their lectures and uploads them to YouTube? Most people would agree that the history teacher is now a creator. But if the teacher only presents the lectures in a classroom, then they wouldn’t be a creator. Similarly, if a TV reporter presents an investigative report on TV, people usually won’t call them a creator. But if the reporter turns the report to a podcast, then the reporter fits the colloquial definition of a creator.
We think the key difference between a creator and a teacher or a traditional journalist or an actor or a filmmaker is the way they distribute their work. Painters, filmmakers, writers, singers, etc. who distribute their work through traditional channels like bookstores, movie theaters, radio stations, and art galleries are artists. The same folks who distribute their work through online platforms or social media like Instagram, YouTube, Facebook, or Spotify are creators.
So, this is the definition we’re going to use for our series on creators: Creators make content and distribute the content online. You can be a traditional artist but not a creator and you can be a creator without being a traditional artist. Or you can be both. The other definitions we found online tend to be too broad and don’t seem to fit the current business use of the term creator.
What do Creators Create?
We’ve pinned down the definition of creator. Creators create content and distribute the content online. The content can be all sorts of things: from a cooking video to a song to a photo. By our definition, the exact content doesn’t matter. The important part is that the content is distributed online.
Typically, works that are distributed online are protected by copyright. Some works will have a thin layer of copyright protection—a short message on an online chat board, for example. Other works like an original film uploaded to YouTube will have broad and many layers of copyright protection. Influencers usually communicate through videos, photos, or short messages. All of these can be copyrighted.
So, creators create copyrighted works. And a creator business deals with creating and licensing copyrighted works. That’s why we think it’s important for a creator to understand copyright basics.
What is a Copyright?
Most people have a somewhat intuitive understanding of what a copyright is. But copyright is actually defined by law. Because different countries have different laws, the exact rights covered by copyright can be slightly different from country to country.
What Qualifies as a Copyrightable Work?
In the US, the mandate for copyright law comes from the Constitution (Article I, Section 8, Clause 8). To qualify as a copyrightable work, the work has to:
- Be original
- Have an author
- Be affixed to a tangible medium
Once a work satisfies all the above conditions, then it automatically receives a copyright. You can register your copyright with the Copyright Office, but you don’t have to.
In the US, copyright law also covers boat hull designs, photomasks used to make computer chips, and architectural designs. But we don’t expect a creator business to cover these areas, so we won’t be discussing them.
Exclusive Rights of a Copyright Owner
A copyright owner can prevent others from:
- Reproducing the copyrighted work
- Making derivative works
- Distributing the copyrighted work
- Performing the copyrighted work in public
- Displaying the copyrighted work in public
- For audio recordings, transmitting the recording (e.g. through radio)
- For some visual works, the right to receiving attribution and retaining the integrity of the work (moral rights)
Copyright Law can be Complex
There are a lot of complexities to copyright law. For example, some works aren’t copyrightable because they’re not original enough or do not have an author. Once your work is copyrighted, your work is protected internationally. When you hire someone to create a copyrighted work (e.g. you’re a YouTuber and you want original music to go with your video), sometimes, that copyright belongs to you. Other times, the copyright belongs to the composer.
We go over these complexities in our more detailed article:
Copyright Basics, for Creators
Copyright Exceptions, Exemptions, and Fair Use
Sometimes, even when you own a copyright, other people are still allowed to copy or use the copyrighted work without your permission. Most people think of this as fair use, but there are other sections in US copyright law that will allow you to copy without permission.
It’s pretty important for a creator business to understand copyright exceptions, exemptions, and fair use. Sometimes, you’re the copyright owner. Other times, you’re the user. Either way, it’s good to understand whether your rights are being infringed or whether you’re infringing on someone else’s rights.
There are four broad situations where you can copy a work without permission. These are:
- The work is not copyrightable
- The act of copying is exempt from copyright infringement under some limited circumstances
- There are exceptions under copyright law that allows certain people to copy
- The use is fair use
The copyright exceptions and exemptions are pretty clear because they’re defined in the copyright law itself. But whether something is copyrightable and whether something is fair use are very fact specific. The lawsuits fighting over these two concepts can probably fill a small library.
We won’t be able to go into every detail, but we give some general guidelines in our detailed article:
Copyright Fair Use, Exceptions, and Exemptions, for Creators
What if Someone Steals My Content or Accuses Me of Stealing Their Content?
As a creator, someone might accuse you of infringing their copyright. Or you might accuse someone else of infringing yours. In the US, there are three ways to settle this type of dispute. These ways are:
- Through a copyright infringement lawsuit
- Use a Digital Millennium Copyright Act (DMCA) takedown notice
- Use the Copyright Claims Board (CCB)
No matter which method you use, you’ll either have to have a copyright application or approved registration before you can take action.
In the US, a copyright owner can either ask the infringer for actual damages or for statutory damages. Statutory damages can be as high as $150,000 per infringed work, but you have to register your copyright either within three months of the publication of your work or before your work was infringed. If you go through the CCB, the most you can get is $30,000 total.
For more detailed information about copyright lawsuits, the steps to filing a DMCA takedown notice, and how to file a claim at the CCB, see our detailed article:
How to Handle a Copyright Claim Dispute, for Creators
A Creator Business is Branding-Focused
So, a creator makes copyrighted works. But creators tend to create works that fit a specific niche or have a specific style. For example, maybe you teach cooking on Instagram Live and you tell dad jokes while you cook. Or you make a science news podcast, but only if the news is related to trees.
These are examples of branding.
In the world of artists, branding is close to the concept of artistic style. Maybe that’s why branding translates so easily to creator businesses. Branding is a shortcut way to tell one creator from another, even when they work in the same area of, say, making cat memes. And, when a creator’s brand fits with a marketer’s brand, the marketer might pay the creator to advertise their product or service.
Most people have a general sense of branding. But branding is a fairly specific concept in marketing. It’s worth taking a closer look to get a better understanding.
What is Branding?
Branding is a shortcut way of giving a sense of what your business (or you) is about. Branding can apply to any type of business, whether you sell goods, provide services, or create content.
Every year, some of the world’s big, famous branding agencies rank the most valuable brands in the world. Here’s the one from the Kantar Group, the one from Interbrand, the one from Brand Finance, and the one from Forbes (2020 ranking). We’ll use a few of these top marks to illustrate some branding concepts below.
Basic Branding: Know What You’ll Get
There are two levels to branding. At the first level, when you mention a particular brand, the consumer should immediately know the type and quality of the product they’ll get.
For example, if we say McDonald’s, people immediately know they sell fast food that includes various burgers and fries. They also know what the food tastes like. If we say Walmart, you know right away that they’re a big retailer that sell lower cost goods.
Knowing what you’ll get is the most basic type of branding.
Advanced Branding: Emotional Response
There is a second level of branding. At this second level, branding has more to do with emotions than product identification. The emotion is triggered by a trademark, a tagline, or a logo.
Not every famous brand triggers this type of response.
Apple is a great example of a brand that triggers an emotional response. When a consumer sees the word Apple or the Apple logo, they tend to think that they’ll get an innovative, elegantly simple product used by trendsetters. So, if they identify with these values, they tend to want to buy an Apple product too. This is marketing through a positive emotional response.
Coca-Cola is one of the most famous brands that triggers an emotional response. The company has tweaked its branding here and there throughout the years. But, to various extent, the brand has always conveyed happiness, harmony, togetherness, and wholesomeness. The message is that you’ll feel all these things if you drink and share with others this fizzy sugary water.
One of the most famous Coca-Cola ads is called the Hilltop ad. It shows a group of young people from all over the world singing “I’d like to buy the world a Coke.” The message is as relevant today as it was 50 years ago, when the ad was first shot. In one minute, the ad conveys all these feelings and ties the emotion to the Coca-Cola brand.
And this is branding on an emotional level.
How to Build a Brand for a Creator Business
Of course, Apple and Coke sell products. But it’s not difficult to apply the concept of branding to people, especially to creative types. Songwriters, filmmakers, painters, and writers eventually develop signature styles. The styles are their brand, and the brand is associated with the artist.
But what if you’re not a traditional artist-turned-creator? Maybe you make DIY woodworking videos or stream your gameplay. You can still have a brand.
To figure out your brand, ask yourself what makes you different from your competitors. Figure out how to state this difference in one sentence, whether it is that you teach people how to make wooden furniture using ancient Egyptian woodworking tools or you give tips on how to be a successful free-to-play gamer. This is the same process businesses go through to figure out how to market their goods or services. And that one sentence is your brand.
Once you understand your brand, then you’ll either want to associate that brand with a trademark or your name (Kim Kardashian, Oprah, and Martha Stewart are both names and powerful trademarks). Always show your trademark with your writings, videos, etc. Keep doing it and maintain the quality of your presentation. It’ll take some time, but eventually people will associate you or your work with your mark.
Because your brand will be closely associated with your trademark(s), let’s look at trademarks next.
Trademark Law for Creator Businesses
A trademark is usually a word, a phrase, or an image (logo) associated with your brand. A trademark is the embodiment of all the goodwill of your business—i.e. all the positive feelings about the quality of your business’s goods or services. In some countries like the US, a trademark can also be a shape, a sound, a color, or even a smell.
For a word, phrase, image, etc. to be a trademark, it has to be used in commerce with your goods or services. In many countries, trademark rights come with use. This means you don’t always have to register your trademark with the country’s trademark agency to get rights to the mark. But a registered trademark does often come with additional rights. We’ll go over the advantages of a trademark registration later in this article.
Your trademark rights end when you stop using the trademark in commerce with your goods or services. Once your trademark rights end, someone else can use that mark on goods or services similar to yours.
Trademark law is a complex area of law and very fact dependent. We discuss more basic trademark law concepts in this more detailed article:
Trademark Basics, for Creators
How to Pick a Trademark
Earlier in our step-by-step guide on how to start a business, we went over some tips on how to pick a business name. These tips are the same for picking a trademark. We went over the different strengths of a mark and the likelihood of confusion standard on whether someone else can prevent you from using a mark. If you follow the tips, you should be able to come up with a fairly good, distinctive mark that you can use.
If you wish to simply use your personal name as your trademark, you can do that too. There are some special rules you’ll have to follow to register your name as a trademark. But, as long as no one else has registered the name and you use your name in commerce on goods or services, you should be able to use it as your trademark.
Applying for and Maintaining a Trademark Registration
Our readers are mostly from the US, so we’ll describe the trademark registration and maintenance process for the US. For other countries, the process tends to be similar on a high level. But the details are usually different.
You can apply for a trademark registration yourself. Here’s the application page. But, in our experience, DIY registrations tend to get narrower rights than registrations handled by an attorney. So, we think it’s a better idea to hire an experienced trademark attorney to help you through the process.
We go over some of the main points in the trademark registration process below. For more details, see our full article on the trademark registration and maintenance process:
The Trademark Registration Process, for Small Businesses
The Trademark Application Process
In the US, you can register a trademark with a state or with the federal government. The state registration is, of course, limited to the state. The federal registration is nation-wide. Most people apply for the federal registration.
As we mentioned earlier, you don’t have to register your mark to get some rights to your trademark. But registration gives everyone else notice that a particular mark is yours for a set of goods or services. If you have to sue someone for trademark infringement, a registration saves you some time proving that you’re using the word/phrase/logo as a trademark and that you’re the owner of the mark.
After you submit your application, you’ll go through an examination process that often takes a year or two. Your application might be rejected, but that’s fairly normal. The best way to deal with a rejection is to hire a trademark attorney to help you argue why your mark should be registered despite the rejection.
Sometimes, when the rejection is fairly simple, the trademark examining attorney can help you out. They will often include wording in the rejection that you can agree to. Then, you just call them up and give them permission to change your application. In our experience, trademark examining attorneys are friendly people who do want to help, so don’t be afraid to call them.
Once your application is approved, it will be published to see if other trademark owners object to your mark. If no one objects, you get your registration. If someone does object, we recommend you hire a trademark attorney to deal with it.
Maintaining Your Trademark Registration
Once your trademark becomes registered, your work isn’t over. You have to continue to use the mark in commerce to keep it alive.
You’ll also have to police your mark. This means you’ll have to keep your eyes open to make sure other businesses aren’t using your mark on the same type of goods or services as you. Once you find someone using a mark that might infringe your rights, we recommend you hire a trademark lawyer to help you with your next steps. Usually, you’ll have to force them to stop, to license your mark, or to agree (on paper) that both your use of the mark won’t confuse consumers.
US trademark registrations last 10 years. You can renew the registration if you can prove you’re still using the mark in commerce. And, 5 years after registration, you can also file something called a Declaration of Incontestability. The Declaration gives you some extra rights to your mark.
A Creator Business Often Has to Deal with Trademark Fair Use
Even though a trademark owner has the exclusive right to use their mark on their goods or services, there are some limits to this right. The limits fall under the general concept of fair use.
There are two types of trademark fair use. They’re called descriptive fair use and nominative fair use.
Some trademarks are actual words in the language. For example, Apple/apple, Adobe/adobe, and Cowboys/cowboys. When you’re using the word as an actual word instead of referring to the company, this is called descriptive fair use.
Sometimes, there is no way to avoid using a trademark to identify something. For example, if you’re writing a product review or doing comparison advertising, then you can’t avoid using the trademark to refer to the company or product. This is called nominative fair use. You have to be very careful when claiming nominative fair use. You can use only the minimum that’s necessary to say what you need to say and no more than that.
Here’s our article that goes into further detail on trademark fair use.
Trademark Fair Use, for Creators
Product Endorsements and Use of Name or Likeness, for Creator Businesses
One of the main ways a creator business makes money is through product endorsements. Product endorsements cover several areas of law. One area is called the right to publicity. Another is called the right to privacy. Together, they fall under the idea that your name or likeness can’t be used without your permission.
Where it comes to the use of a person’s name or likeness, most of the rules are under state laws. And the state laws are not very uniform. Some states protect a person’s name or likeness only if the person is famous. Other states protect this right whether the person is famous or not. In some states, this protection exists only when the person is alive. In other states, the protection can last after a person’s death.
When you do endorse a product, you’ll have to pay attention to some truth-in-advertising laws. The most important one is that you’ll have to tell your audience that you’re being paid for the endorsement. There are both state and federal regulations that you have to follow. (Fortunately, they’re not too complicated.)
Here’s our article that gives more details on the basic rules of product endorsements:
Product Endorsements and the Right to Your Name and Likeness
Product endorsements are done through a contract between the creator and the marketer (the company paying for the advertisement). In our third series on running a creator business, we’ll go over some common clauses in these agreements. We’ll explain what they typically mean and how the clauses work together.
At the End of the Day, Content is Still King
We started this article by saying that a creator business is heavily focused on intellectual property law. We end this article by reminding you that the law isn’t everything.
Understanding how copyright, trademark, and the right to publicity work are important to the business of being a creator. But, at the end of the day, it is your unique creations that matter.
Back in 1996, Bill Gates said, “Content is king.” Machines can’t really create and come up with new and entertaining content. Not yet, anyway. And, as creators, you’re in the business of creating content. Without good content, it’s useless for you to understand copyright and trademark law.
So, don’t forget to create good content.
Our next series of articles are about where you can put your great content after you’ve created them:
How to Run a Creator Business: Content Distribution Platforms
DISCLAIMER: This article does not constitute legal or accounting advice. Instead, it contains general information. The information gives you the background you’ll need to hit the ground running when you do go get advice from a lawyer or accountant. Only lawyers and accountants properly licensed in your state/country are qualified to give you legal or accounting advice.
Questions? Comments?
