Let’s be honest: when it comes to innovation, everyone can learn a thing or two from us. Whether it’s the current TikTok dance craze or virtual fashion shows that are completely transforming the way fashion is presented (hey, Hanifa!), black creatives are the trendsetters and trendsetters who bring art to the world.
With this knowledge, it is essential to recognize that others will copy our work, sometimes without our permission. Addison Rae, a TikTok star with more than 87 million followers, faced backlash after appearing onThe Tonight Show Starring Jimmy Fallon and demonstrate all the latest TikTok dances without crediting the creators.
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In June 2021, in response to Addison Rae’s appearance, Black TikTok creators went on strike, refusing to create further choreography until they are duly recognized for their ingenuity and recognition that the platform is based on their invention. While this won’t be the first (or even the last) time Black beauty and fashion designers have been denied credit for their work, it’s critical to remember that you have rights and the ability to protect your work.
“A lot of times the problem with social media content creators is that the author doesn’t get proper attribution, which hurts their visibility as a creator,” says Lisa Bonner, Esq., a seasoned entertainment and intellectual property attorney and author of The LegaliTEAS of Entrepreneurship: The Relentless Pursuit of Excellence and Balance in Starting Your Own Business. “Creatives often miss out on the side opportunities that come with creating such a viral sensation.”
Bonner continues, “In the cases of these viral dance splurges or makeup tutorials, these videos have been appropriated by a white content creator who is then de facto credited as the author. Then the counterfeiter appears on a TV show and he lands a big campaign because of the exposure that comes with this opportunity he co-opted from the creator.
Depending on the type of work you do as a fashion or beauty designer, Bonner advises making sure you have a proper agreement in place that spells out who owns what. “Be sure to seek federal trademark or copyright protection (if applicable) and finally, include a visible identifying factor so that even if the content is reposted or shared, they can trace it back to you.” Bonner also suggests including a watermark on the video or using a song you registered with the copyright office.
If you’re a new beauty and fashion content creator or thinking about starting your own blog or videos, it’s essential to know the differences between a copyright and a trademark. Bonner got us started by simplifying the legalese.
According to World Intellectual Property Organization (“WIPO”), intellectual property (“IP”) is classified into six categories which include patents, trade secrets, industrial designs and geographical indications. However, we focus on the following points:
- Trademarks protect words, symbols, phrases, slogans and logos. You seek federal registration and protection of trademarks and patents with the United States Patent and Trademark Office (“USPTO”).
- Copyright protect copyrighted works, such as sound recordings, scripts, treatments, photos, moving images, maps, etc. To do this, you apply for federal registration with the United States Copyright Office.
“Your protection is based on the category your IP address belongs to,” says Bonner. “Federal registration in either case means you have broader geographic and enforcement rights to your intellectual property and allows statutory damages for infringement of your intellectual property.”
Copyright grants the owner exclusive use and protection of what you have registered with the copyright office as a creation. You acquire a common law copyright once an idea is transformed into a “tangible means of expression”.
“For example, if you make a video, or write content on paper or a napkin, or take a photo, you have a common law copyright,” says Bonner. “Again, seeking federal copyright registration gives you greater protection in the enforcement of your work and the damages associated with misappropriation.”
Ideally, you want to protect the images you release for public consumption or sale. “You can submit images individually, but if you submit multiple works, such as a fashion or beauty book of photos you’ve taken (a “collection of works” to use Copyright Office verbiage), you can register them all at once,” Bonner suggests, “provided you are the author of all the works, and further, provided that said works were published together at the same time.”
It is not essential to hire a lawyer to obtain a copyright. However, Legal Counsel strongly recommends hiring a lawyer when attempting to register a trademark. “The Trademark Office is very particular about the specimens you need to submit for proof of use, which is required for registration,” says Bonner. “And the phraseology associated with the application is akin to an art form, and if it’s not written correctly, your application will be rejected. It is extremely difficult and expensive to try to correct a botched trademark application, and since a brand is a race to first use, you might not get a second bite at the apple.
So what can you do if you see someone copying your work? Bonner recommends notifying the website owner. “All genuine social media websites such as Youtube, Facebook, Instagram, Twitter, etc. make it easy to report a potential infringement on their site with a click and a description of the alleged infringement,” she informs us. . “Everyone has different checks and balances, but if the job is yours, you need to report it. These websites take this seriously and will contact the alleged infringer and possibly remove their content while this is resolved.
It is important to note that if the infringement occurs in a larger context and costs you money or opportunity, you should consult an attorney who can help you file a cease and desist letter and discuss your options to deal with the offense further.
Remember, when creating your videos, taking photos, or writing articles, make sure you understand how to protect your work. “I start my book with a quote from Albert Einstein that says, ‘You have to learn the rules of the game. And then you have to play better than anyone else,’ Happy sharing. Hit !
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