Use of third party intellectual property in your RichCast

Important: the below sets out guidance on use of third party (i.e. someone else’s) creative work (artistic, literary, dramatic, musical or other creative content) – i.e. their intellectual property (IP). It is intended as high-level guidance only and does not constitute legal advice. It is also drafted from a UK IP perspective – the rules are likely different in other jurisdictions.

 

It is your responsibility to ensure that your RichCast titles do not infringe anyone else’s IP, and our EULA explicitly prohibits use of someone else’s content without their permission (i.e. a valid licence). Please obtain your own legal advice if you are unsure, or have any queries.

 

If RichCast receives reports that your RichCast title infringes their IP, your RichCast title may be unpublished (removed from public view) and not be able to be republished until the infringing work is removed.

 

1. Wait, what is IP?

IP protects the expression of ideas and exists in most creative content we see and interact with every day like photographs, films, graphics, music and the text of books or magazine articles.

The Good News…

Anything you create in RichCast becomes your IP as long as you haven’t copied or incorporated someone else’s IP and others can’t use it without your permission. You don’t have to register it for protection. Simply publishing it on RichCast establishes your ownership. If you create a hit story on RichCast – it’s yours and for you to exploit and others are not allowed to copy or use parts of it without your permission.

The Bad News…

Mostly, use of IP, for example by including it in your RichCast, without the IP owner’s permission will infringe (i.e. break or undermine) the IP and is therefore not allowed from a legal perspective.

IP exists in virtually all content we see and interact with every day, including images, music, sound recordings, text, typographical arrangements, graphics, logos, brand names, photographs, paintings, sculptures, films, computer programs/code, databases, designs, broadcasts and websites. The IP, and in particular copyright (a type of IP) protects the artistic, musical, dramatic, literary or other creative expression/recording, rather than the idea behind the expression/recording. For example, the copyright which exists within a novel protects the collection of words used to tell the story, rather than the story itself. Trademarks are another type of IP that generally protect logos and branding.

In many cases, use of content without the IP owner’s permission (i.e. a licence to use that content) infringes (i.e. breaks or undermines) their IP. On the RichCast platform, this is likely to result in your RichCast title being unpublished (removed from public view) and you having to remove the infringing IP from your RichCast. In many cases, acting quickly to respond to any complaints of IP infringement will satisfy the IP owner and they will not pursue the matter any further. However, continued or repeat IP infringement may have more serious legal consequences. 

You, therefore, need to be careful about including other people’s content in your RichCast. The best way to ensure that your RichCasts do not violate others’ IP rights is to only include content that you have created yourself, or to get permission from the IP owner before including it.

 

2. How do I know who owns it?

The rules on who owns the IP in any given content can be complex, but in general, the person who originally created the content is the owner of the IP it contains unless they’ve sold it.

 

3. Does IP last forever?

IP does not last forever. The length of time for which IP lasts depends on the specific type of IP, when it was created, and the type of work in which it exists. Once IP has expired, it enters the public domain and you can use it without obtaining permission from the person who used to own it. Be careful though - sometimes there will be related IP that still exists, such as in the reproduction of an artistic work, or a secondary recording of music.

IP does not last forever. For example, copyright is a type of IP and we’ve set out details for how long it lasts under UK law based on the type of work below:

IP Duration.jpg

Separately, trademarks usually last 10 years from the date of registration of the trademark with an intellectual property office. Please note however that after 10 years, trademark registrations can be renewed, and the ultimate duration of the trademark can be different depending on the specific country in which it has been registered.

 

Where the IP in any given content has expired, it is considered to have entered the ‘public domain’. Once this happens, the content can be used without obtaining permission from whoever previously held the IP. Be cautious though – sometimes there will be related IP that still exists, such as in the reproduction of an artistic work, or a secondary recording of music.

Here's an example:

Cthulu is a character first introduced by H.P.Lovecraft in a short story called “The Call of Cthulu”. This means the following with regards to certain of the IP related to this work:

  • H.P.Lovecraft unfortunately died in 1937, this means the copyright in the text of the story “The Call of Cthulhu” has expired and can be used in your RichCast.

  • For argument’s sake, let’s say the artist of any images that were included in the first publication of “The Call of Cthulu” died in 1941. This means that the copyright in these images has expired and can be copied / used.

  • If a fan created a further illustration of Cthulu (purely from their own imagining of Cthulhu, rather than copying anything previous) in 1989, but the fan died in 2010 – this has not expired and that particular image of Cthulhu cannot be copied / used without permission from the rights holder (which may be the fan’s estate).

  • There was a 2005 film adaptation of “The Call of Cthulhu” (note there will be separate copyright in the film itself, the script, and the musical score used for the film). Where any one of the writer, director or composer is still alive, or it has not yet been 70 years since the death of any one of those people, the copyright in the film has not expired and so cannot be used without permission from the rights holder.

 

4.  Are there situations where I can use someone else's IP without their permission?

Yes, there are some limited exceptions to the rule that you need the IP owner’s permission before you can use their IP, and these depend upon the particular type of IP you are trying to use. You will need to be sure that the requirements for relying on any exception or exemption are met to be able to use IP in your RichCast without the IP owner’s permission.  

 

There are certain ‘permitted uses’ of copyright. We give examples of the permitted uses (or copyright exemptions) that are likely to be most relevant below.

IP Exception.jpg

Fair dealing - there is no legal definition of this, but the following is relevant to whether use of a copyright work is considered fair:

  • Does your use of the work compete with the original work? Could it be used as a substitute? Does this, or might this, affect the amount of money the IP owner makes from the original work?

  • What is the real reason for your use of the work? Have you intentionally created your RichCast as a review when the real purpose is actually simply to copy the work?

  • How much of the original work have you copied? A large amount, or regular copying of small amounts, is unlikely to be fair.

If you wish to rely on one of the copyright exemptions listed above it is even more important to obtain legal advice as the rules around when use is permitted can be complicated.

You are also able to use [5.]

 

5. Those exemptions don't apply, what should I do?

If you really want to include someone else’s content in your RichCast, then the best thing to do is to ask whoever created the content if you can include it in your creation.

If there is third-party content that you really want to include in your RichCast, then the safest way to do so is to approach the person who created the content and ask for their permission to include it in your RichCast. When doing so, explain how you will use the content and that it will be made publicly available via the RichCast platform so that the permission you obtain fully covers your intended use.

That being said, there are a number of resources out there which make images, sounds, videos and more available for download with an automatic, blanket, permissive licence which gives you permission to use the relevant content in many different ways. Try an internet search for one of these resources, and look out in particular for content said to be licenced under “creative commons”.

 

6. I've got permission, I can do what I want now, right?

If the person who owns the IP agrees to let you use it, make sure you understand what they are happy for you to do with it. In particular, you should explain to them that you will include it in your RichCast, that this will be publicly available and that you might in the future earn money from it.  

Whether you use specific content for which you have obtained permission directly from the relevant IP holder, or have chosen content from a source which makes it available with an automatic permissive licence, it is key that you check the terms of the permission / licence you have obtained.

You will need to make sure that the terms specifically cover however you intend to use the content. For example, if you intend to use the RichCast platform to earn from your RichCasts, then the permission you receive must allow you to use the included content for commercial purposes. 

 

7. Other FAQs

Q: I have used someone else’s content in my RichCast but:

  • only a small part of it (such as 3 seconds of a song); or

  • I have attributed my use to the owner (i.e. told others that the content belongs to someone else); or

  • I have made some modifications to it.

Is that still IP infringement?

 

Most likely, yes – it is usually irrelevant whether you have only used a small amount of content, attributed it to its owner, or modified the content. This is unless an exemption applies. If you think an exemption applies to use of someone else’s content in your RichCast, please obtain legal advice to confirm.

 

Q: The content I want to include in my RichCast has been made public and / or copied and used by lots of other people, surely I can use it too?

 

Just because something has been made public, or because other people have copied it or used it, does not mean it is ‘fair game’. Others may have obtained a licence, have an exemption that applies, or might be using it unlawfully!

 

Q: Can I include content I have purchased in my RichCast?

 

The answer is – it depends!  

 

If you have purchased content, such as a song or a game, it is likely you have only purchased a permission to use that content in a personal, private context, rather than the IP in the content itself. You should therefore check the terms of your purchase before including such content in your RichCast, to ensure you are permitted to do so.

 

Q: I have worked with a friend to create my RichCast – who owns the IP and am I allowed to use it?

 

If you have worked with someone else to create your RichCast, it is likely you will be joint owners of the IP. This can be complicated and it is normally strongly advisable to agree (in writing) certain terms regarding, for example, the ways in which either of you are able to deal with the IP (such as assign or sell it to somebody else), and permitted uses of the IP at the outset.