The Handwriting is on the IP Wall: Inventors and Content Creators are in the Same Sinking Boat

When it comes to declining respect for intellectual property rights inventors and content creators, such as photographers, musicians and writers, as well as some trademark holders, appear to be in the same rocky boat. 

The attitude of businesses and the public toward paying for intellectual property rights is declining. Several carefully watched copyright developments are combining to have a significant impact on the invention as well as the content landscape. A judgment from the Supreme Court of the United States is expected any day that will address the Andy Warhol Foundation’s “fair-use” suit against rock photographer, Lynn Goldsmith.

This decision is also of concern to inventors and patent holders, even if they do not realize it. They don’t see the writing on the IP wall: Weaker intellectual property rights in general are gaining momentum, and lawmakers and the public don’t know enough to care.

Weaker, less certain IP rights impact innovation, creativity, commerce, jobs, value and the ability to compete with China. Various creators and types of IP holders might want to think about working together to plug the leaks.

Out of the Bag

A recent Intangible Investor article in IPWatchdog, “Fair Use of Fair Game? Bad Copyright Behavior is Infectious,” looks at the poor regard towards copyrights on the part of businesses and the public and suggests that patent holders need to beware of a similar disregard.

“Patent holders should be concerned that permissiveness towards creators and copyright affects them, too. The ‘free-for-all’ cat is out of the bag. Good luck getting it back in.”

Unfair Use of Fair Use

Some creators and their business entities, like the Warhol Foundation, employ the “air and water defense.”  The argument goes something like this: “Most content is readily available. Why should people have to pay for it? It should be free, like air and water” (which, of course, are not in many cases). Besides, what they add to an existing work is transformative. It established a new and more valuable work.

Weaker intellectual property rights are gaining momentum, and lawmakers and the public don’t know enough to care

In the patent world, businesses often attempt to create a moat around an invention with multiple rights to prevent an easy design-around. With copyright, that is not an option. If something is sufficiently different, it is usually considered new. Just how different is the big question.

What is really at stake is the amount creators should be compensated, if at all, for specific works. Hiding behind fair use in an already overstuffed environment of images, music, news and other content may be unfair but, if recent rulings are any indication, defensible.

New Directions

The idea is not to restrict creators (or coders or anyone else) who wish to take a work in new directions, but not encourage them do so at the expense of others whose livelihood depends on licensing. Better tracking of content ownership and valuation will lead to more proactive licensing that lowers the risk of infringement, even if it may lower ROI.

The public is not typically on the side of the infringed creator. For businesses and celebrities, the fear is that easy payment for source IP will open a floodgate of licensing demands. Perhaps these threats to profitability have never been factored into their overhead.

“Shareholders today are much less tolerant of ecologically unfriendly behavior… In time, they will become similarly mindful of bad IP behavior. It hurts everyone.”

“Shareholders today are much less tolerant of ecologically unfriendly behavior,” says the Intangible Investor. “In time, they will become similarly mindful of bad IP behavior. It hurts everyone.”

For the full Intangible Investor story, tap here.

Image source:; Prince image courtesy Lynn Goldsmith ©

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