Whether you consider non-fungible tokens (NFTs) to be a fad, a functional method of sharing art and other creative works with a broad audience, or even a source of serious funds in a digital gold rush era, the prices for some NFTs over the last year places a heightened value on those items of intellectual property (IP) you or your business may create. Whether they’re photos placed on Facebook, the meme dreamed up in Photoshop, the new dance created for TikTok, and even this article in good old-fashioned ink-on-a-page (still my favorite medium), all IP has value.
Advanced social media and the growing metaverse have created a virtual venue for the display of our creative works. Even simply publishing items on a personal website or a business home page puts them out there for the world to see, and to share. In that process, the erosion of ownership rights begins. Displaying IP items of value, be they digital creations or photography and physical art, should only be done on the internet after careful thought. Preserving the value of that IP means that once it is posted and released to the masses, that event makes controlling its use harder and reduces the legal options for protecting it.
Ones to Watch
To preserve their value and maintain their protection at law, key elements of IP vital to a business should not be shared on the internet, social media or virtual worlds. This includes items like trade secrets, recipes, production processes and the like which give your business a competitive edge over others. Further, these items should be maintained on physical drives and servers when possible. If stored in a cloud service, the proper protection, breach notice, indemnification and insurance clauses must be negotiated with the service provider. By doing so, the possibility of those important IP items becoming public domain or knowledge is lessened, remedies can be pre-determined and a challenge to their use by others more easily mounted. Keep those vital items of IP safe and out of public reach, sharing them only with the parties necessary to continue conducting business and under the protection of a written services contract or a non-disclosure agreement.
The In Between
For those whose trade is imagery – be it photography, graphic design, brand crafting, videography or digital animation – some sharing of those items of IP in a tangible medium is vital to growing a brand and establishing a successful business. As a result, posting those items to social media channels such as Instagram, TikTok, and Twitter is important in establishing yourself with top-notch creativity or as an expert in your field. Doing so, however, may result in the unauthorized use and unintended consequences relating to that shared media. Balancing posting for awareness versus profit should be considered prior to clicking a confirmatory button online.
One way to limit unauthorized use and protect the imagery when posted to social media is through the utilization of a watermark, with a note as to copyright including your name or that of your business and the year created. While the image may end up shared thousands of times on social media, there is at least a tangible way of tracking ownership back to you or your business. But be willing to accept the fact that the image may end up as someone’s profile picture or desktop background or even hanging on their wall without them paying you a penny for your efforts. Also note that by posting images or other creative work on some social media sites, such as Pinterest, the terms and conditions of use set forth a grant of license to the company and other users to share that same work. This license may further erode your claims for use (and misuse) of your original works posted on those social sites.
So when you stumble across that ideal shot of a moose in a misty backwoods meadow, or snap a photo of that perfect summer sunset over your favorite lake or such sights stir the creation of a sonnet to remember them by, know that your creative IP has value which may extend well beyond the personal and into the stratosphere of our growing virtual worlds. Such items are worthy of protection, and sharing through any medium may set them out into the public domain for unintended use, and ultimately, lost income.
Simonson is an attorney specializing in business, corporate and employment law with Fryberger, Buchanan, Smith & Frederick, P.A. For more information or assistance in protecting your business trade secrets, intellectual property and creative works, contact him at: nsimonson@fryberger.com.
