Don’t Give Away Your IP Unless You Mean To
Avoiding Licenses without Agreements : Put it in Writing.
An implied license does not require any actual agreement—it arises solely from conduct and serves to allow others to use your intellectual property (“IP”). There is no requirement that even a verbal understanding was reached. Rather, an implied license is a legal concept that is created solely by the actions of parties and does not require any intention to allow such use.
The implied license originated as a concept in patent law, and was then adopted in copyright cases. It is now also applicable to the right of publicity (aka “Name, Image, Likeness” or “NIL”).
Generally, an implied license will be found where the following occurred:
- At the request of a client
- An author creates a work
- Knowing the intended use by the client
- And provides the work to the client
For singers, producers, songwriters, and artists, an implied license will allow others to use your most valuable IP, copyrights and rights to publicity (e.g., voice, image, likeness), without any compensation, or without further compensation. Moreover, if a payment is found to have been made, the license will be nonrevocable.
Not only can you license your IP without any agreement, unless you explicitly limit the extent to which your IP is licensed, a Court will find the contours of the license to be as broad as reasonably possible. In other words, unless there is evidence demonstrating that you limited the extent to which your IP may be used, an implied license will cover all uses reasonably anticipated, and without geographic limitation.
It is critical that creators understand the situations under which you may be found to have transferred rights, and to avoid the implied licensing of your work by having thorough, written agreements in place. Without a written agreement, you may be giving your rights away without compensation, without adequate compensation, and without knowing the parameters of the license that you have given.
There may be situations where it makes sense to work for a low amount or even for free—e.g., in order to build a reputation, make connections, learn and develop skills—but, this should not be done without careful consideration of the pros and cons of doing so in the context of your career, and you should never give away your IP without knowing that you’re doing so. Do it because you want and intend to, and because you are being fairly compensated in return (whether that compensation is monetary or otherwise). And always, know what your rights are, and what you can expect for allowing other to use them, whether that is a one-time “buy-out” payment, or it includes residual payments based on the performance of the product, or is an alternative arrangement.
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Our client was an artist/singer/songwriter, who was signed to a major label, and managed by a well-known manager. The manager asked her to come to the studio session to sing for an advertisement. Not many details were given to the artist, but she was told that the “jingle” they were working on was going to be used in some advertisement. She was not told anything else and assumed that the details would be hashed out later. She had no idea that they could claim that the copyright that she was a co-author of (the sound recording, which she was a co-author of with the producer) could be used without any payment, and could be used in any format (Youtube, TV, radio, etc., etc.). The “jingle” was used on a massive television commercial campaign for an international pharmaceutical company. Our client had no idea that her manager had requested her to sing on behalf of an advertising agency he had contracted with, who in turn was working for the international pharmaceutical company.
The manager, advertising agency, and pharmaceutical company claimed that the recording was developed by them, and that our client had given them an implied license to use her copyright in any format, forever, and without any payment.
ANAND LAW battled with 3 law firms and reached a quick and highly favorable confidential settlement.