How artists can protect their intellectual property


We sat down with Alex Stack, Intellectual Property and Commercial Lawyer at Caravel Law, to do a Q&A about his experience with intellectual property law and the challenges artists and creators face when it comes to protecting their work. 

Q: Can you tell us a bit about your background in intellectual property law and the services you offer to your clients?

Alex: I’ve been a practicing intellectual property and commercial lawyer for about 20 years. The core of my practice is focused on intellectual property, from patents and trademarks to copyrights, industrial design, advising people on trade secrets and confidentiality. My practice also ranges from what you might call hard-core intellectual property, helping my clients obtain protections for things like patents and trademarks through to strategic advice on how to build companies and use these assets to make money. The other part of my practice is commercial agreements and contracts which centre on intellectual property.

Q: We know protecting creative work is especially difficult for artists. What are some of the challenges facing those who make their money from their ideas or their creative output and getting legal protection for that work?

Alex: It’s interesting when we talk about protection for things in the art or music industry as opposed to intellectual property owned by technology and research companies. In some ways, it’s easier in a sense for those on the artistic side because you don’t have to go and register intellectual property in the same way. With patents and trademarks, you have to go to an office and try to register your patent, and sometimes you end up arguing with government officials about whether you are entitled to a patent. Copyright is different – creative works are covered by copyright, and as soon as you provide some objective evidence that you actually own the creative idea. And as long as you have invested some skill and judgment into it, then copyright is actually automatic. So, from that point of view, it’s actually easier. 

[Read our blog post: Non-Fungible Tokens and IP: what are you actually buying?]

Q: So as soon as an artist creates a new song and records it, they automatically have a copyright on that song?

Alex: That’s right. It would be copyright on the music itself, and they could have a separate copyright on the lyrics if they have lyrics separate from the music itself. But, yes, as long as they put sufficient skill and judgement into it, in other words, they’re not just copying someone else’s song, then they should have a copyright in the things where they have added their own judgement into the song.

Q: Are there ways in which it’s challenging for artists to protect their IP? 

Alex: Yes, in other ways, it’s certainly more difficult. For example, if someone is actually infringing on or using your intellectual property without permission in the copyright area, it can be very difficult to uncover. Unlike forms of physical property, if someone takes your intellectual property, you don’t know about that unless you happen to stumble across it. And the second thing is that if you want to enforce your rights, it ultimately relies on going to court – and going to court is expensive. That’s the other big problem I see often, especially when I’m advising smaller companies. I can sit here, and we can describe various rights they theoretically have, but unless they are willing to go to court to do something about it, which in many cases they really can’t afford to, those rights are fairly meaningless unless the other side is willing to respect them. 

Q: It’s difficult to be aware of all the creatives in your space and their intellectual property – and to make sure you’re not inadvertently stealing from another artist or creator. How do you advise artists to protect themselves against accidentally copying someone else’s work?

Alex: It’s very hard to prove unintentional copying because, legally speaking, the standard is: have you copied a substantial amount of someone else’s work into whatever it is you are doing now? But of course, it’s very rare in a real life situation for someone to have physically sat there and observed you copy their work. So the way the courts usually treat these cases is that they’re willing to infer that copying occurred as long as there is access to the original copyrighted work and as long as there is enough similarity between the two works. In the music industry especially, it can be difficult because if a song is popular, then the access question is automatic. Of course, everyone has heard of this famous song or that famous song. Beyond that, there’s the question of the level of similarity and whether it’s inadvertent copying – meaning the person is not deliberately doing it. There have been famous cases where very famous artists have finished recording a song, their album is ready to be released, and then the songwriters, the people who wrote the song that’s on the album, are thinking to themselves, ‘Actually, this song that I wrote actually sounds an awful lot like that person’s song.’ So they go back and retroactively negotiate to give that other person songwriting credits. It’s a very difficult thing to do. 

Q: What is the best advice you have for artists to protect their work?

Alex: My advice in terms of proving that you actually have a copyright in whatever it is you created in the first place is to keep records. Something that can prove what you did and when. So if you have something written down in music in a melody line or beat or lyrics or the combination of them, record it in some manner, whether it’s written down on paper or recorded literally. Then whenever you make a significant modification, make a record or make evidence of that as well. And that achieves two things: one is you are showing your own creative process and showing all these various steps that you took to get to the end product, and the second thing that it does is prove that you’re the person who put in that skill and judgement to create that music or art. It essentially provides at least some evidence that you didn’t copy it from anybody. With proper record keeping, you can say, ‘Well, I didn’t copy it, and in fact, it took me ten steps to get there. Here are my ten steps. I’ve documented when they occurred, and in fact, I have recordings of them’. That’s the best evidence you can have to protect yourself. It’s not perfect because the logic of inadvertent copying is that you’ve kind of copied it in your head without thinking about it, which at some point can’t be defeated no matter how much evidence you have.

Q: So, that goes back to grade school math: show your work.

Alex: Essentially, yes. It sounds a bit silly, but of course, a lot of law, and especially a lot of litigation when you ultimately go to court, showing your work is really all it boils down to.


Have a question about intellectual property or need support protecting your creative work? Caravel Law is an alternative legal firm with over 60 qualified and experienced lawyers to help support your legal needs. Get in touch with our team to find out more.

The information provided in this article is not intended to be legal advice. Many factors unknown to us may affect the applicability of this content to your particular circumstances.

  • Share:

Work with a law firm that gives your business the attention it deserves.

Contact us