CREATING IN THE GREYSCALE: A GUIDE TO NAVIGATI NG INTELLE©TUAL PROPERTY AS AN EMERGING A®TIST OR DESIGNER.

1 CREATING IN THE GREYSCALE: A GUIDE TO NAVIGATI NG INTELLE©TUAL PROPERTY AS AN EMERGING A®TIST OR DESIGNER.

2 CREATING IN THE GREYSCALE 3 TABLE OF CONTENTS INTRODUCTION❻ MINDFUL INQUIRY❻25 →Glossary❽ →Canvas⓬26 SCENARIOS❿ →Appropriation⓬ →Control & Presentation⓮ →Ownership in Collaboration⓰ →Communication & Licensing on Social Media ⓲ MEETING of the MINDS⓴ →Artist Contracts⓴

4 CREATING IN THE GREYSCALE 5 INTRODUCTION As an artist or designer building your by definitions, policy, law, and precedent creative practice, there are many new cases, it is inherently murky because situations you may encounter around each situation has unique differences. The protecting the work you are making, intention of this resource is to set up a as well as showing and selling your work. framework of understanding, and prompt OCAD U’s Centre for Emerging Artists you to ask questions that can help you & Designers has developed this resource determine the next steps to your own to introduce you to Canadian intellectual specific scenario. property (IP) concepts & terms; share some possible scenarios; and offer a tool for creating an action plan when you need it. ADVOCATING FOR YOUR WORK IN THE ART WORLD

So, what is intellectual property (IP) like art and music, novel designs, key starting point to navigating sur- How you choose to respond in a situation and how does it affect me as an art- inventions, new technology etc.). vival in capitalism and tackling artist ist or designer? It rewards creators, authors, and precarity. IP applies to all disciplines For emerging creatives, particu- inventors by giving them exclusive of creative practice, from jewellery related to intellectual property depends on larly those who have recently grad- control over their work, so that they design and creative coding to public uated, IP is often described as “a re- would be willing to share their ideas and community art. Understanding ally uncomfortable thing”. It can be and drive progress for social good. IP is a means to advocate for your many factors like your relationship to the stressful or overwhelming to think In an ideal sense, it rewards creators work in the art or business world – about, and may not always be top by giving them exclusive control to and to be able to advocate for your- priority. But it is important because protect their interests in their work self and your peers, and the value other parties involved, alignment to your it underpins the value that you and so that the public can enjoy access of your artistic labour is ultimately others ascribe to your work. to and use of their work. a form of self and community care. The system of intellectual prop- In reality though, this system can values, and how the outcome impacts your erty law that governs IP rights is a be complex, and laiden with ambigu- means to give economic incentive ities as well as injustices. However, to encourage the creation of intel- understanding basic concepts and personal goals, etc. Though IP is guided lectual goods (original creations the right questions to ask can be a

6 CREATING IN THE GREYSCALE 7 IP GLOSSARY Glossary: INTELLECTUAL PROPERTY

C Copyright T Trademarks I Industrial Designs P Patents T Trade Secrets

Original creations Brand (words, logos) Aesthetic features Inventions Confidential Info ADDITIONAL RESOURCES “The right to copy” “Use it or lose it” “They way it looks” “New, useful, not obvious” “Keep it a secret” → OCADSU ↗ – free legal advice to all OCAD U students through Copyright is made up of a bundle A trademark is a distinctive mark Industrial designs protect the ap- Patents protect original inventions A trade secret is confidential in- OCADSU of exclusive rights that include the or symbol used to distinguish your pearance of a product – the visual and can be applied to products, pro- formation that is not known to the → Artists Legal Advice Services sole right to publish, perform, show, goods or services from those by features of shape, configuration, cesses, machines, chemical com- public, and has commerical value. Ontario (ALAS) ↗ transmit, and produce or reproduce another maker in the public's mind. pattern or ornament, or any combi- positions, and improvements to Trade secrets can include ideas → Canadian Artists’ Representation/ a work—or a substantial part of it— It can be a combination of letters, nation of these features applied to any of these. The invention must be or proposals; recipes or formulas; Le Front des artistes canadiens in any form. In Canada, Copyright in words, sounds, or designs used in a finished article. It's meant to en- new (first in the world),useful (func- blueprints and designs; customer (CARFAC) ↗ – advocacy group for a work lasts for the life of the author association with particular goods or courage form and function to work tional and operative), and inventive lists; data; and processes, methods Canada’s professional visual artists + 50 years (+70 years in the US). services that you are actually mak- together. (showing ingenuity and is not obvi- or "known-hows" you've finessed → The Professional Association for Copyright protects artistic, liter- ing, offering, or producing. The mark By registering your industrial de- ous). It's meant to reward ingenuity for your practice etc. It's a means Design (AIGA) ↗ – standard Form of ary, dramatic, and musical works needs to be distinctive enough so sign with CIPO, you have the exclu- that fuels progress. to protect valuable information that Agreement for Design Services(pdf) including computer software, sound that it won't be confusing with exist- sive right to prevent others from In order to be awarded a patent, you don't want widely known (espe- → The Canadian Intellectual recordings, performances etc. You ing trademarks or deceptive in trick- making, selling, or importing ob- you need to be the first applicant to cially when you are in the research Copyright Office (CIPO) ↗ – the IP can’t copyright an idea – it has to be ing the consumer to buy something jects that embody your registered register it. A registered patent ex- and development phase for a proj- administration body of Canada in a fixed form (put it down on pa- from a competitor that takes advan- description in Canada. A registered cludes others from making, using, ect). It can be used as an alterna- → CIPO 's IP Academy ↗ per!) in order to be copyrightable. tage of another maker's goodwill. industrial design lasts for 15 years, or selling your invention in Canada tive to a patent, or to make sure an → Copyrightlaws.com ↗ Copyright is automatic, there is no It is always a good idea to do a and is renewable. for 20 years. invention or design is not disclosed → IPilogue ↗ – Osgoode Hall Law need to register. Although register- trademark search before designing to the public before applying for a School's IP blog ↗ ing it with the Canadian Intellectual a logo or brand identity for a client, → CIPO Industiral Designs → CIPO Patents Overview ↗ patent or industrial design. → UAL's Creative IP (UK specific) ↗ Property Office (CIPO) will give you or to protect your own products. Overview ↗ → Candian Patents Database ↗ The only way to protect a trade a certificate of registration, which is By registering a trademark with → Canadian Industiral Designs secret is to keep it secret. Use clear evidence of ownership. CIPO, it gives you the exclusive right Database ↗ non-disclosure agreements (NDAs), Moral rights are distinct from the to use (sell, or license) it throughout confidentiality clauses, encryption, economic rights under copyright. Canada. A trademark registration passwords, or even a lock and key to They protect the author's personali- lasts for 10 years, and is renewable keep it safe. If you can keep it a secret, ty or reputation through the right to if you continue to use it. it can potentially last forever! Also paternity/attribution, integrity, and watch out for confidentiality clauses association with a work. → CIPO Trademarks Overview ↗ or NDAs as part of artist contracts or → Canadian Trademarks Database commission agreements, and make → CIPO Copyright Overview ↗ ↗ sure you understand the terms before → Canadian Copyright Database ↗ Case Studies: signing. → 10 Myths about Copyright Law ↗ → Cadbury’s purple wrapper ↗ → CIPO Trade Secrets Overview ↗ → Fair Dealing ↗ – copyright → Tarzan’s yell ↗ exceptions in Canada → Christian Louboutin’s red sole ↗ → CARFAC-RAAV Minimum → Deadmau5 vs. Disney over Recommended Fee Schedule mouse head logo ↗ ↗ – guidelines on payments for copyright & other professional services

8 CREATING IN THE GREYSCALE 9 SCENARIOS The followi ng four scenarios dive into common, but murky, situations where intellectual property might come into pla y. These scenarios take you through consid erations, questions, and possib le ❶ APPROPRIATION: next steps. How incorporating the work of others in your own work ❷ impacts the various parties CONTROL & involved PRESENTATION: How IP might have a role in your ability to determine and ❹ maintain the way that your COMMUNICATION & work is publicly presented ❸ LICENSING: OWNERSHIP IN How clarity in COLLABORATION: communication between How creative collaborations parties affects the way might have implications on that work is shared and who owns the IP in a work shown, particularly online

10 CREATING IN THE GREYSCALE 11 SCENARIO

or my values? What kinds of moral ing exceptions don't apply to moral ❶ Appropriation: R Recognize obligations might I have? Am I good rights, which could allow creators W What’s Next? with using other people’s work in to require attribution and restrict What is your understanding of the this way❽? changes to or uses of their work. Reach out to the artist directly. THE ART OF COPY current situation? What are the facts? ❻ Transparency throughout – from Reach out and initiate conversation → You need to make sure you own ❶ It's important to consider what getting permission to clarity on how with the artist to understand their This scenario explores considerations and the copyright to all elements of the aspects of your work or practice you plan to use the work. This al- perspective. Think about what you implications in the grey areas behind using work that you are submitting to the might utilize the work of others. In a lows both sides to articulate wants want from the situation, and articu- other artists’ work in your own work. exhibition video art piece, for example, images, and boundaries. Acknowledging the late your interests and wants. See if → You need to determine if there are logos, products, sounds, and music labour put into the work you are us- a win-win situation can be achieved. any copyright-protected elements in might all be protected copyright or ing whether in terms of attribution, THE SITUATION your work trademarks, and your use could be or creatively paying homage to the Reach out to the gallery, institu- You’re submitting a new media work to an → If there is, you need to have considered infringement. original work contributes to the re- tions, or other parties involved in open call, and come across this criteria: permission and credit given to the ❷ Often deemed as the YouTube spect of artistic labour. the presentation of the work. other artists in order to exhibit or Mash-Up Exception, s. 29.21 of ❼ Whether in the use of the work, Perhaps you have a better relation- Requirement for Entry: the Canadian Copyright Act allows the way the work might have been ship with others involved in the sit- You must be the sole owner and creator of the Who else is involved in this situation? for the use or dissemination new altered, or the presentation of the al- uation, reach out and get a better artwork. If any element of the work (e.g. sound, What is their relationship to and/or in- works created from copyright-pro- tered work – would your use tarnish understanding of the facts. photography) is created by someone else, permission terest in the project? tected materials given that it is for a the other creative's reputation, alter must be granted and credit given. → The exhibition programmer needs non-commercial purpose. the intent behind their work in a det- Go public or create your own work to make sure that nothing in the show ❸ Copyright doesn't last forever. rimental way, be an appropriation as a response. infringes on anyone's rights When copyright expires in a work of their culture or traditional knowl- If conversations have been unsuc- → Other artists whose work you (life of author +50 years in Cana- edge, expose them to unforeseen cessful, telling your story publicly might have incorporated might da), it enters the public domain, so harm? How might they feel with the could help garner public support and want to know, be acknowledged, or that it's available for anyone to use way that you have used their work? help raise awareness of the issue. compensated for use of their work without needing to get permission. ❽ Legalities aside, what does your Tapping into your own creativity to → You need to ensure you meet the Useful links to works in the public gut tell you? create work that generates conver- requirement for entry domain ↗. sation about this could sometimes ❹ Creative Commons (CC) is a AND THEN... be an even more effective means to licensing framework that allows While checking out a group show address your interests. I Investigate creatives to easily give permission at a major art institution, you come Investigate any information that you and define conditions around how across a work by another artist Make it easy for others to know you may not know. Are answers to any they want others to use and share that seems to have used elements are the copyright owner, you are of these questions important to your their work. The aim is to encourage of your own original work. No cred- willing to have your work remixed, interests? more openly licensed creativity in it was given to you, and you have and to contact you if needed. □ Are there any aspects of my work "the commons" – work that is free- never heard from this artist about You might be happy that others are that overtly or inadvertently uses ly available for use, sharing, and re- using your work. taking inspiration from your work. copyright-protected or trademarked mixing. Search on the CC website Perhaps you believe in the copyl- elements❶? for content to reuse ↗. ACKNOWLEDGE eft philosophy, which encourages □ What is the purpose or intent ❺ Fair Dealing is an exception in the How are you feeling about this situ- access to to use, copy, or modify behind my work? Will I be showing it Canadian Copyright Act that allows ation? How are the others involved works as long as all derivative works publicly, will I be selling it❷? the use of copyright-protected work feeling about this situation? also offer the same freedoms (e.g. □ Am I getting source material❸ without permission or payment for through CC-Share-alike licensing). from an artist or platform❹ that the purpose of research, private encourages the use of their work? study, education, satire, parody, MORE READS □ Have I asked / should I ask for criticism, review or news reporting. → The Ethics Centre, “The Art of permission❺ to use other people’s What is considered "fair" takes Appropriation” ↗ work in my work? into consideration 6 factors: → Artsy, “When Does An Artist’s □ Am I respecting❻ the labour that → Purpose of the dealing Appropriation Become Copyright has been put in the work that I am → Character of the dealing Infringement?” ↗ using? How might I do so? → Amount of the dealing → Copyright and Fair Use Cases □ What kind of harm❻ might I be → Alternatives to the dealing (US context) ↗ causing to the creative whose work I → Nature of the work → McLeod & Kuenzli (ed), Cutting am using? → Effect of the dealing on the work Across Media ↗ □ Am I jeopardizing my positionality Keep in mind that these fair deal-

12 CREATING IN THE GREYSCALE 13 SCEN ARIO

ACKNOWLEDGE ❷ Control & Presentation: R Recognize I Investigate How are you feeling about this situ- ation? How are the others involved What is your understanding of the Investigate any information that sus on merchandise like t-shirts), feeling about this situation? CALL FOR PUBLIC ART current situation? What are the you may not know. Are answers to and how you’re being credited – facts? any of these questions important these specificities should be includ- This scenario explores how IP concepts might → The call is looking for works that to your interest in the project? ed in your contract. impact your artistic vision and how your work is fit with the theme of the building, □ Through conversations, written ❷ Moral rights exist as a distinct W What’s Next? publicly presented. to be displayed for 2 years on the instructions, or a contract, have I type of protection under Canadi- construction hoarding conveyed how I want my work to be an copyright law that goes beyond Open up a conversation with the → Opportunity created by the presented to those involved in the economic interests to ensure the in- other parties involved T H E S IT UATI O N developer, in partnership with presentation of my work? tegrity and intent behind the artist’s If you feel like your work has been The Centre for Emerging Artists & Designers shares a call for OCAD U’s CEAD □ Are there items in the agreement work are preserved. manipulated or misrepresented, submissions for artwork to be on the hoarding of a developer’s → Support for artists include help that I can ask for clarification on, or As the creator of an artistic work, can you reach out and have a con- development project. Here is the call: with digitization, considerations terms that I want to add? you have the right of paternity (at- versation about how it is import- around potential vandalism, credit, □ What control do I have over tributing your name (or not) to ant to you and see what some of and payment based on Canadian how the other parties can use your work), integrity (preserving the limitations might be? Are there Artists' Representation (CARFAC) the reproductions or images of the intended meaning of your work different ways to make sure the in- S rates my work❶ (i.e. can images of my against alterations, modifications tent and integrity of your work are CALL FOR SUBMISSION d work be used as part of different etc.), and right of association with preserved? For example, knowing by CARFAC and will be credite Who else is involved in this situa- projects, reproduced, or exhibited your work (choosing the contexts CEAD’s mandate is to support stu- t r work. 2 Year Public Art Projec eloper on-site for thei tion? What is their relationship to separately from this project?) and entities with which your work dents and alumni, they are in a place A Leading Canadian Dev and/or interest in the project? How will I be credited both on can be shown or used). to help advocate for your needs. + O CAD U’s Centre for The Process □ s d Researching their website and so- the project site and in photographs Moral rights cannot be given In setting up this partnership, the Emerging Artists & Designer Submissions by intereste ts and alumni will cial media accounts you discover marketing/promoting the project? away. Even if ownership of copy- CEAD has an agreement outlining studen Overview election the following: □ Is there a waiving of moral right is transferred, the moral rights the remediation of the artwork and r be reviewed by a s OCAD U’s Centre fo committee comprised of → The Leading Canadian Developer rights❷ in the contract or license remain with the original author of have ensured that the agreement s & Designers m the CEAD, Emerging Artist r representatives fro has many projects around the city. agreement? Am I okay with giving an artwork. But moral rights can has your – the creator’s – best inter- (CEAD) is excited to partne g and Faculty. They often feature artists on their the other party that control? Could I be waived – you can choose not to est in mind. They can help advise on ith one of Canada’s leadin w he work construction hoarding, selecting negotiate more in exchange? exercise your moral rights under a possible next steps and can reach developers, to feature t Considerations lumni in a ill be works that thematically align with Who is responsible for license agreement for example. out to Tridel. of students and a • Works in any medium w □ lay of art ill each construction project. maintaining the artistic integrity ❸ Have a discussion about any high-profile public disp g eligible. The organizations wo he construction hoardin cted artists t → The CEAD supports students of my work❸ (i.e. if my work gets plans for maintenance and reme- Talk to a friend or mentor on t t work with sele - surrounding a developmen professionally scan or photo and alumni through facilitated damaged or vandalized, will this be diation to manage how the work Speaking to a peer or mentor can ears. or reproduc- project for two y d graph the work f hirings, commissioned work, fixed and how?) is presented over the course of the give you perspective on the situa- Participating artists an tion. career development support, and In what ways can I ensure my agreement. The question of “what tion. Moreover, they may have gone sked to submit - □ designers are a • To minimize the likeli finding meaningful, valuable, paid questions are answered and who happens afterwards” may also be through a similar experience, or ing work in any , original exist o hood of vandalism opportunities. can I go to if I have concerns? important if, for example, there is worked with the same parties, and medium while responding t works should have → Yourself: Consider how your a delay and the developer wants to can give you insights. the project description and minimal blank or work might fit with this call and the Even before you apply for a proj- leave the hoarding up for another specifications. white space. ❶ theme. What are your interests in ect, ensure that your work and your year. MORE READS Artist / Designer Fees terms of getting your work out in personal values align with the op- → Artists' Legal Outreach, "Making mitted s com the city? portunity and you understand what AND THEN... Art Public: Artists, the Law, and the The project i d ing the artists an (PDF) to pay t it means to give licensing rights to You apply, and you selected. Digiti- Making of Art in Public Spaces" designers and copyrigh your work (permission to use your zation and installation go smooth- ↗ ng to the fees accordi work) for this project. ly. Three months in, you noticed → copyrightlaws.com, "Moral s established guideline Ensure you understand how the that someone has vandalized the Rights in Canada & US" ↗ artwork you provide will be used hoarding in a way that does not → Heer Law, "Understanding Moral and how you will be credited, this in- match the integrity of your art- Rights under Copyright Law" ↗ cludes documentation or reproduc- work. A month later, this still has → Case Study: Michael Snow vs. tions of your work created in the pro- not been fixed. You are extremely The Eaton Centre ↗ cess. Ask for clarifications around unhappy about this and want the length of time the other parties can work to be repaired as soon as use the image(s), the context of the possible. image use (i.e. on the hoarding ver-

14 CREATING IN THE GREYSCALE 15 SCENARIO

❸ Ownership in Collaboration: R Recognize I Investigate W What’s Next? What is your understanding of the Investigate any information that to consider: what percentage of Open up conversation with your A COLLABORATIVE current situation? What are the you may not know. Are answers to copyright ownership does each collaborators facts? any of these questions important person have? How will decisions Have a conversation with all collab- → The business idea came out of a to your interest in the project? about licensing opportunities be orators about interests and wants, CLASS PROJECT group project in the class □ How much ownership do I have made (sometimes it might be eas- and talk through an option that → Though you came up with the over the idea❶ and the resulting ier to make one person in charge)? works for everyone. For the collabo- This scenario explores the implications of creative initial concept, all your group prototype❷? If one co-owner licens es the work, rators that you’re continuing to work collaboration on IP ownership and strategy. members contributed to the final □ Do I want to continue pursuing the are royalties owed to the others, or with – you can come up with a col- prototype project with the group members? do the co-authors intend to go their laboration agreement that outlines THE SITUATION What are my personal interests or separate ways with the work? May expectations such as time commit- Assignment-turned Business Idea Who else is involved in this situa- goals with the project? What type co-owners sell their "portion" of the ment, roles, amount invested, own- You are given an assignment to develop a project together with tion? What is their relationship to of arrangements❸ might other copyright and, if so, what rights do ership etc. For the individual that two other students. The first part of the assignment requires put- and/or interest in the project? members desire? the others have? Are co-owners en- wants future recognition, you can ting together a proposal with the concept, timeline, and research. → Your two other group members □ What are different members’ titled to develop derivative works outline what is fair based on their The second part of the assignment requires creating a working – they helped to actualize the expectations of the collaboration❹ such as sequels, adapt a tions, or lat- contribution to the prototype. prototype of the concept and presenting it to the class. prototype, which means it could – i.e. how much time and effort, how er versions? What kind of accredita- be considered a work of joint does each member get credited? tion is expected? Find a neutral third party to medi- You are the one who came up with the idea that your group de- authorship. Although they might □ What if the idea really takes off❺ ❹ You might consider creating an ate the conversation cides to go ahead with. Feedback on the prototype from your prof or might not be interested in and becomes very successful, how Artists' Collaboration Agreement If this is a particularly difficult con- was really promising and you are excited to turn this into a real continuing with the project, it is far am I willing to take it? How far with the others involved to outline versation to have, it can be helpful to business idea. You want to approach your group members to see important to understand each are other members willing to take it? expectations of some consider- find a neutral third party to mediate if they are interested in turning the prototype into a full-fledged other’s expectations, roles, and ations regarding co-ownership of the conversation. business plan. capacity for further contributions. ❶ Ideas are not copyrightable. Copy- copyright and other concerns. This This can be supported by either right protects the expression of an does not need to be onerous or Think about your business goals, AND THEN... a formal or informal agreement idea but does not extend to the idea overly formal, it can even be docu- and start forming a strategy that After a discussion with your group, only one of your group mem- between all collaborators. itself. Until an idea is expressed in a mentation of a conversation. The includes IP considerations, includ- bers is as passionate about and willing to commit to pursuing the → Faculty member who assigned fixed form (i.e. paper, electronic, or goal is just to get everyone on the ing potential patent application prototype further. Your prof mentions there is a high chance that the project and gave constructive digital media), there is no copyright same page. Speak with industry peers and do you can patent the prototype. The third group member is not inter- feedback protection. ❺ Think about what other types of some initial patent searches❻ to ested in continuing to work on the project, but said, → The university – sometimes if ❷ The prototype could be seen as IP might exist in the prototype, and see if patenting is something that a work is created under funding a work of joint authorship – a work what strategies could be useful to fits within your business goals. It's from an institution or within an produced by the collaboration of protect it. Is there confidential infor- also important to consider keeping employment setting, ownership of two or more authors in which the mation that can be protected with a certain information confidential if copyright or IP rights might also contribution of one author is not confidentiality agreement or non-dis- there is a patent opportunity, some if the idea takes off, belong to the university or employer. distinct from the contribution of the closure agreement (NDA)? If it's a people refrain from patenting due I want a cut! other authors. In a work of joint au- new invention, could it be eligible for to costs, but instead are able to ACKNOWLEDGE thorship, the authors are all co-own- patent protection? leverage the value of their invention How are you feeling about this situ- ers of copyright in the work. through trade secrets. Patenting is ation? How are the others involved ❸ As co-owners of copyright, each MORE READS a complicated process, so speak- feeling about this situation? person could have a stake in deci- → copyrightlaws.com, "Who owns ing to a patent agent or lawyer for sion-making, it might be helpful copyright in Canada?" ↗ clarification and recommendations Sample Artist Collaboration Agree- is the best way to proceed towards ments: patent application❼. → CARFAC Ontario ↗ → CARFAC Saskatchewan (PDF) ↗ ❻ Search for existing patents: → VLAA (PDF) ↗ → Canada-wide ↗ → International (World IP Office)↗ → International (Google Patents) ↗ ❼ CIPO's guide on protecting your innovation: → Infographic (PDF) ↗ → More details ↗

16 CREATING IN THE GREYSCALE 17 SCENARIO

❹ Communication & Licensing: R Recognize I Investigate What is your understanding of the Investigate any information that cial media, CARFAC recommends Assess intent, and potentially go ON SOCIAL MEDIA current situation? What are the you may not know. Are answers to a royalty of $25 as a flat fee per public. facts? any of these questions important artist whose work(s) are used, per In certain cases, conversations and This scenario explores intentions and impact → You have been using social to your interests and decisions in platform ↗. reporting might not satisfy your in- behind making your work public on social media media as a platform to showcase the situation? ❸ Think of an agreement or a li- terests. This goes back to your inten- and the use of your work online. work that you created and own the □ What are my original intentions cense to use your work as a part- tion behind promoting your work on rights to behind putting my work❶ up on a nership. Revisit the interests of the social media. Sometimes, achieving → You’ve received a request from public social media platform? Does parties involved. Don’t be afraid to virality is the intent, and with that, THE SITUATION a brand asking for permission to this request fulfill my intentions? ask questions and ask for things licensing rights might need to be repost an image of a specific work □ How might this benefit me, and that you might want. There is often relinquished. In other cases, it is im- Hi! We love this photo, it really sets on their account what might this cost❷ me? a way to get to a win-win situation. portant to raise awareness of the → You will be credited, but no □ How did the brand/entity find my fact that certain companies do not the mood. Would you mind if we compensation is mentioned work? Why do they want to use my respect the value of an artist’s work. repost it in an upcoming post about work? W What’s Next? Think about in what ways you might the launch of our new service? Full Who else is involved in this situa- □ Do I have a clear idea of what I be able to assert influence under photo credit of course :) tion? What is their relationship to am agreeing to❸? Are there details Reach out to the business directly. these circumstances. It might seem Thanks so so much! Sure and/or interest in the project? that I want to clarify? → Are there other, more targeted difficult as a single voice against an → Communications contact from □ What will my work be associated contacts at the company that you organization or large entity, but if it is you can <3 the business or organization – how with (brand, product, service, cause can reach? important to you, social media can A N D T H E N ... have they shared others’ work in etc.), and am I okay with that? → Have you been able to have a also be on your side to raise aware- The company went on to post your work the past? What's their mission and □ How will my work be used? Will conversation with them about your ness and garner support from your without properly crediting you. values? they edit, crop, or modify it? concerns? peers. See the example of Sharona → Instagram as the social media □ Is my own image being used as → Does their response satisfy your Franklin / @paid.technologies ↗ platform – are you aware of part of the work? Am I comfortable interests? who used social media to raise large Hi again! Following up with photo credit on what’s in their Terms of Use and with that? scale public support and Maya Ben this. I support reposting as a gesture of sup- Copyright policies ↗ around □ How will my work be credited? Report to the platform. David ↗ who creatively incorporated port to the community and to customers. I’m copyright ownership and licensing? □ How long will they have my work → Document the post as best as you the conflict into her art practice. happy that you chose my photo to repost, but → Yourself and other creatives in up for? can so you can have a record of it. the same shoes – your actions and □ Is there potential for future → Report the infringement ↗ to the without proper visable credit, it’s not serving decisions could set a standard for opportunities with this relationship? platform. Note that on Instagram, that purpose at all. how brands and institutions work you will have to be the owner of the with individual creatives ❶ Creators retain ownership of the copyright to the work. Instagram work that they post online. Though may remove the post, but as the Apologies for not giving you a proper this area is becoming increasing- copyright owner, your information response until now. Unfortunately, we only ly grey as some platforms Terms will be sent to the entity that posted give photo credit by tagging and not in the and Conditions can be contentious it. They may contact you, and or about users granting licenses to appeal the removal. caption for consistency on our channel. It's their work automatically. Always a great photo, and we're so happy to have pay attention to what you are agree- you share and support us :) ing to. It's also a good idea to add a copyright notice, and an accessible MORE READS way to contact you for permission to → Legal Implications of Reposting ↗ repost or use your work in any way. → Slate, "The Legal Netherworld of ❷ Increasingly, artists struggle with Meme Accounts" ↗ ACKNOWLEDGE the tensions between wanting vis- → ArsTechnica, recent court rulings How are you feeling about this situ- ibility or virality and the potential on Instagram and Sublicensing ↗ ation? How are the others involved need to relinquish licensing fees. → Hootsuite, "Understanding Image feeling about this situation? Do a mental cost-benefit analysis in Copyright" ↗ your mind, and see if there is a fair exchange of value (which can be non-monetary) in this case given your own priorities. Note that for so-

18 CREATING IN THE GREYSCALE 19 CONTRACTS Meeting of the Minds: ARTIST CONTRACTS WHAT NEEDS TO BE IN A CONTRACT? ❶ Who (Parties): Who are you ac- ❺ “Consideration”: What is the con- WHAT’S A CONTRACT? countable to and vice versa? The sideration that will be paid? What Sample clause in Xpace Cultura A contract is a written or spoken two or more people or corporations types of fees or other negotiated con l Centre’s artis agreement. At its core, it’s all about tract regarding a commissi t that are part of a contract are each benefits, as well as how and when acc oned essay to “meeting of the minds”, meaning ompany an exhibition. The t called a party. Make sure you have they will be paid to you should be bet erms find a bala that all parties should have a shared ween the parties regardin nce the proper party’s legal name, ad- made clear in the contract. Think cop g editorial control understanding of their commit- yright ownership, licensin , dress, and contact information in about the value of the labour you and e g permissions, ments and expectations. If you don’t ven values that the organi the contract so it is clear who is will or have put into your work – you uphol zation feel like this mutuality exists, then ds. bound to the agreement. Remem- can think beyond sole monetary the contract has not been proper- ber both parties need to sign copies terms to include things like accom- ly formed. Contracts are meant to of a contract, and each party should modation, meals, transportation ex- y by clarify, not confuse – never sign ord essa keep a copy. penses, acknowledgement etc. and a contract that you are not in full include those in your contract. If cer- n a 750-1000 w xhibition. agreement with. There is always missio y the e ace ❷ What (Goods or Services): Ex- tain fees are contingent on specific room to negotiate. ll com o accompan val. pressly state what is required of things or there is continuing royalty Xpace wi r t e dishcretion of Xp rging write s at t ol and appro each party, whether it be actions or to be paid or resale rights ↗ to con- WHY CONTRACT? an eme riter i l contr o the e of w ditoria provided t specific things the other party might sider, put the specifics of when and A contract doesn’t have to be com- The choic intains e want from you – like creating a work how those contingencies or calcu- ace ma y will be work has ific plicated or full of jargon. A written a d Xpn f the essa feel their pec by commission, selling a work, or lations will be made in the contract al draft o (s) vide s he contract is merely a tool to help The fin he Artist houheyld pros giving a licence to someone for the (e.g. specify that an accounting au- avoid misunderstandings, and have ). Should t d, t unicate with t use of your work. dit will take place at specific times Artist(s te m s something to hold each other ac- iseenrepresen- m ill com al change to calculate royalties). b pace, who w te editori countable. It’s an opportunity to ck to X iapropr ❸ How long (Term): How long an ensure that your interests are met feedba agreement lasts for is the term. ❻ Termination, Conflicts, & Breach: andWriterensure ap – you can get creative. Think about k and Make sure the term is not automati- It’s always good to have a way out what you can offer each other, and are made. ir wor cally renewed, and include specifics of a contract if possible – include how you can make that as clear as right of the n any of any requirements to meet the end a termination clause to specify un- s copy e essay i possible. The process of creating n ) of th ly with of term, as well as options to termi- der what circumstances parties can e Writer ow e Artist(s e onissibl r. The a contract helps parties clarify and Th n by th is perm he Write nate or renew the term. For example, end the contract and how much document the nature of their rela- publicatio location pace and t ith written can the agreement be terminated notice must be given (e.g. when ser- or rom X ssay w tionship, as well as define roles and other form ssion f heir e . early under specific situations, or vices are not performed, payment responsibilities. written permi -publish t e Artist(s) maybe there is a defined review pro- not paid within a specific time, un- nly re ce anad th cess before an agreement can be foreseen extraneous situations etc.). Writer may o pon from X LEGAL COMPONENTS OF A CONTRACT: si ression renewed. Don’ t forget to make room for emer- ① Offer: One party clearly com- ermisp -opp usal to gence and fluidity in the contract, i.e. municates promise to do or refrain within an anti ight of ref y Where: Is the contract defined or what happens if terms need to be erates s the r priate b ❹ from doing some specified action in Xpace op nd reserve nappro restricted to a specific geographical adjusted (e.g. changing timelines), the future. mewfraork a l deemed i territory? E.g. are you granting a li- include considerations like how ② Acceptance: Another party ac- sh anpubliy materia cense to reproduce your work only the parties should communicate cepts the offer. There could be staff.pa eXc in a specific province? Each con- with each other, whether changes counteroffers made before an actu- tract also specifies its governing should be in writing, and what oth- al offer is accepted. law. Since laws vary between coun- er rights or obligations each party ③ Consideration: There needs to be tries and even provinces, it’s always have. For example, some licens- some exchange of value or a benefit best to use the law of the province ing agreements give the licensee a that each party gets or expects to that you reside in or is most acces- right of first refusal when a licence get from a contract. Another words, sible to you in the off chance that expires, which can be a restrictive each party should be able to answer you have to go to court to enforce clause that allows the licensee to why they entered into the agreement. your rights. be the first to consider whether they ④ Mutuality / Meeting of the Minds

20 CREATING IN THE GREYSCALE 21 The facilitator give want to re-license the work before cannot be assigned. Both exclusive s p the owner approaches anyone else. licenses and assignments need to photo ermission f graph and do or Xpace to be in writing to be legally binding. comme cument the rcial ar workshop for LICENSES chival, publicit non- l educational p y, publicati A licence gives the licensee the le Some key things to include in your ace Cultura urposes, in p on and gal right to do something, which in license agreement: se in Xpu round Xpace will n erpetuity, acr Sample cla or contract a n of ot permit r oss all med the absence of the license, they will Whether the license is exclusive uctiod doc eproduc ia. □ Centre’s facilitat s umentatio tions of th on and repro ake n in the exhib e workshop otherwise not be able to do. Copy- or non-exclusive documentati vent. Xpace m rental or l ition for p hey oan withou tt urposes of sales, right law, for example, prevents peo- □ Specifics about where and how works after an e tator that t of the Arti he written permission ple from reproducing a work without your work can or will be used (e.g. o the facili f they want. sts. it clear t mission i permission. As a copyright owner, limiting use to only print, or only e perefus can r erm used tol you can grant permission through on social media channels, within rpInetuity” pe is a t Does the Facilitato “ he permission wil r g a licence. A licence is a temporary one province, only for a specific recor ive permissi specify that t d and share t on to Xpace t transfer of rights, and can be exclu - duration of time etc.) ever:st orla f indefinitely a he document o fter t ation of the w sive only to one licensee or non -ex- □ How and when you will be paid, he date of the w orkshop clusive so that the owner can li- whether it’s an advance licensing orkshop? cense out to more than one entity. fee, or royalties that might be ☐YES ☐ NO You can also transfer ownership generated from the use of your work of copyright completely through an □ Instructions on what happens Does the Facilitato r g assignment, which can be viewed if you want to end the agreement, the wor ive permissio kshop slides (i n to X pace d as a permanent sale of your rights, if you disagree with the way your f any) after t istribute so you will be giving up your con- work is being used or whether other he date of th ☐ YES e event? trol over who gets to use your work. approvals need to be obtained, or if ☐ NO ☐ N/A Note that moral rights (the right to any conflicts arise the integrity and paternity in a work) □ Consider if you want to include a If “YES” is selected right of first refusal to your licensee , the facil request the r itator retains the ri emoval of the d ght to slides from circ ocument ulation at ation or work any point. shop

The Artist must obtain the prior approval of Xpace before using Xpace’s name or logo in any rk, g your wo additional materials to promote this event. The icensind l bout Beyon ng a Artist(s) must assume full financial responsibility consider also thinkio protect nguage t ch can adding la d (whi for any costs incurred in connection with those e or bran me a your nam materials. All such materials must also bear ore formally beco ple also m ense). Sam the Xpace logo, which can be provided to the MORE READS: trademark lic rtist om Xpace’s a participant upon request. → CARFAC Ontario’s “Artists’ clause fr e need to bout th sing Contracts: Agreements of Visual contract a provapobtainl before a u and Media Artists” by Paul r logo.e o Sanderson & Ronald N. Hier ↗ their nam Xpace Cultural Centre is a not-for- → Fredericton Arts Alliance, "An profit artist-run centre dedicated Artist’s Guide to Canadian Contract (PDF) ↗ to providing emerging and student Basics" artists, designers, curators and Using contracts to advocate for writers with opportunities to show- artists' rights: case their work in a professional → Christie's special contract with setting. Xpace is supported by the extensive conditions for buyers ↗ OCAD Student Union. → A new kind of artist contract with charitable resale benefit ↗

22 CREATING IN THE GREYSCALE 23 MINDFUL INQUIRY Mindful Inquiry: A TOOL FOR NAVIGATING DIFFICULT INTELLECTUAL PROPERTY CONVERSATIONS We've developed this canvas to help you navigate murky situations you might find yourself in when it comes to creating, presenting, selling, or working with others in your creative practice. This tool can help you determine what’s important to you, and come up with a plan of action that reflects your values and priorities.

24 CREATING IN THE GREYSCALE 25 MINDFUL INQUIRY CANVAS

Investigate or inquire on what is present using Recognize Acknowledge Investigate curiosity and openness. Acknowledge the complexity of your current Notice what is going on in this moment. Step situation, even if it is stressful, infuriating, Interests Understanding Impact vs. Intent back and observe what is happening in this frustrating, or unpleasant. Let the thoughts, • What do I care about? • What do I want to find out, clarify, or • Are there instances where my situation. feelings and body sensations that you have be • What might the others involved care verify? actions may have had an impact I present. Take a moment to see the situation about? • How would that information impact didn’t intend; and vice versa? • What is my understanding of the current from all sides. Be compassionate to yourself and • What are my goals for this my interests and decisions in this • How does this situation impact my situation? What are the facts? the other parties involved. conversation? situation? larger goals as an artist / designer • Who else is involved in this situation? Who • What do I want the other parties to or for my creative practice? are they and what is their relationship and/or • How am I feeling about this situation? know? interest in the project? • How are the others involved feeling about this situation?

Relationship Communication Options • What is my relationship to the • What can I do to make this • What are some resolutions that different parties involved and what conversation go as smoothly as would satisfy everyone's interests? do I hope it could be like? possible? • Best case scenario? • How could this conversation affect • What should I watch out for? What • Worst case scenario? our relationship? can be avoided?

Accept Action Accept that this is a tough situation. Your sense • What are different directions I can take? • What are 3 steps that I can take right now: of who you are is not fused with or defined • What are the implications of my decision or 1. by this situation. Allow yourself to have the action? experience, but not be dictated by it. You can • From a legal standpoint, who do I need to 2. start disentangling from it, develop insight, and consult with? always return to your values. 3.

• What is frustrating or uncomfortable about this situation? • Why do I feel the way I do? • What do I need right now? How can I get what I need?

26 CREATING IN THE GREYSCALE 27 ACKNOWLEDGEMENTS

Created by Macy Siu, Hannah Carriere, and Alexandra Hong Graphic Design by Strike Design Studio

Many thanks to the wisdom of the artists and designers that informed this project: ↗ Rachel Butler ↗ Liz Ikiriko ↗ Natalie King ↗ Kohila Kurunathan ↗ Serena Lee ↗ Derek Liddington ↗ Katika Marczell ↗ Petrina Ng ↗ Kofi Oduro / Illest Preacha ↗ Dhani Oks ↗ Naz Rahbar ↗ Luxshanaa Sebarajah ↗ Josh Vettivelu ↗ Emily Woudenberg ↗ Florence Yee ↗ Staff of OCADU’s CEAD ↗ Staff of Xpace Cultural Centre

The content in this document is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind.

www.ocadu.ca/cead Email: [email protected] Instagram: @ocaducead Facebook: OCAD U Centre for Emerging Artists and Designers Twitter: @ocadu_cead

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