Monetizing your IP – So Simple! (Well, not really…)

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Intellectual property (IP) is often misunderstood and undervalued. I’m all for promoting awareness of IP and unlocking its economic potential. A recent article in Entrepreneur Magazine, How Intellectual Property Can Create an Income Stream Even When You’re at Work, seeks to do this and to an extent succeeds. But, IP as the “ultimate side hustle,” as the author contends? Not so fast. Monetizing IP and IP rights is a bit more complicated than one might conclude from this article.

First, let’s remove trademarks and patented inventions from the equation. Not because they’re not valuable – quite the contrary. But they’re different from copyright works in terms of how they’re created, protected, and monetized. That leaves copyright, which is the actual focus of the article.

The author focuses here on copyright works created for someone else as an independent contractor or derived from works in the public domain. Sure enough, these are potential sources of copyrights (rights under copyright). Both come with potential legal and business traps, though.

Absent a written agreement to the contrary, an independent contractor, unlike an employee, owns the copyright in work created for a customer/client. Independent contractor creators should be clear with their clients, in advance of doing the work, or at least prior to using the work in some new way or with a new client, how copyright is to be owned and how the contractor can and cannot use the work going forward. Many clients may be unaware that they do not own copyright in the work. Some who are aware may be fine with the arrangement so long as the work done for them is not used with a competitor. My point is that if the independent contractor is to produce or has produced something with economic value, which is the premise of the article, the contractor and her client should be clear about rights and future uses.

Another avenue to potentially valuable copyrights is to create something new based on a work in the public domain, such as a new foreign translation of a Shakespeare play (an example used in the article). I offer two cautions here. First, be sure that the work you want to use is, in fact, in the public domain. Shakespeare is easy; copyright lasts a long time, but not centuries. But how about a Robert Frost poem? The copyright on “Stopping by Woods on a Snowy Evening,” first published in 1923, just expired on January 1st of this year. The general copyright term in the U.S. is now the life of the author plus 70 years. A photograph taken in 1978 whose photographer is still alive today will not enter the public domain until 2089 at the earliest. If the photographer dies in 2050, the copyright in the photograph will expire in 2120! So please, be careful about what is and is not in the public domain.

Secondly, as explained in the article, the copyright in something based on a public domain work only extends to what is new. In the case of Robert Frost poem, let’s say that a composer sets the poem to original music, i.e. uses the words of the poem as lyrics in a song. The composer would own the copyright in the music, the melody, but not the lyrics. Including the words of the poem in the song does not take the poem out of the public domain. This might seem obvious, but it needs to be considered when anticipating the value of the new adaptation. Another composer could set it to different music and anyone could reproduce it in an anthology of poems. In fact, your first-ever translation of “Stopping by Woods on a Snowy Evening” into Pontic Greek would not prevent me from subsequently publishing my own Pontic Greek version, so long as I translated my version directly from the original and not from your version. So, understand what your copyright in an adaptation of a public domain work will and will not cover before you invest the time and effort into creating it.

One other legal point about the article: one does not “copyright” something by placing a copyright notice on it. The notice is helpful in terms of enforcing your copyright, but the copyright, your rights under copyright law, come into being when you create the work and are not dependent on a copyright notice.

As for the monetization part, “Find distribution and charge for your stuff!” is only a slight over-simplification of the author’s advice. Suffice to say, as most creators can attest, that’s a worthy goal but often easier said than done.

Still, despite the issues I have raised here, if this article prompts readers to think more proactively and entrepreneurially about their copyrights, then it serves a useful purpose.