How to protect your IP in this copy-paste culture as a content creator ft. Priyanka Khimani

How can one protect their IP as a creator on a platform that works on inspiration? Entertainment and music lawyer Priyanka Khimani tells us!

There always comes a time when the thousandth Reel you come across turns the song you discovered on Reels into a nightmare. Any song or trend that you think is niche soon turns into a trend that people can't help but create content on. This is the baseline of the content industry that gives people the freedom to copy a piece of work as ‘inspiration’ and thrive on someone's original idea. While people understand how various digital platforms work, not everyone is open to having their ideas recreated without permission. Which makes you wonder, in an ecosystem where trends spread rapidly and “inspiration” blurs into imitation, how can creators effectively protect their intellectual property?

Priyanka Khimani, an entertainment and music lawyer, mentions how substantial originality can allow a creator’s work to be copyrightable on its own, even in an ecosystem of trends. "When you talk of ‘inspiration’ and ‘imitation’, we need to understand that the protection of any intellectual property here shall still require a degree of originality that can differentiate the end-product from the inspiration." Trends that catch on like wildfire are harder to protect because they are often imitable and may not necessarily hold a degree of unique expression. She uses the popular case of Roblox Vs TikTok influencer Kelley Heyer as an example of how it works. The popular online gaming platform was in negotiation after it was sued by the creator of the viral ‘Apple’ dance from TikTok, for using it without her agreement. 

This incident shows how creators can openly demand protection for their ideas. "Large corporations have started to view creators and their work as an asset and will try to compensate the creators for their work, so there is a surge in granting protection to creators." Despite cases like these existing, Khimani has noticed how most creators are afraid of speaking out against imitation despite believing that their content is being copied. "I don’t believe that being scared of being copied is the solution. Creators can actively seek protection of their work through trademark and copyright, and ensuring that their rights are protected should be their steadfast belief."

As a steadily growing economy that has become an important part of the entertainment industry, there are laws that are designed to protect ideas that people are openly sharing with their online community. Even then, many may wonder how realistic it is for creators to legally challenge content theft in a fast-paced digital environment. According to Khimani, one way to do it is by being proactive about their approach to the situation while being willing to act swiftly. "We routinely advise digital creators in assessing infringement of their rights, initiating take-downs, and addressing cease and desist letters. However, in a fast-paced environment like digital content creation, since the life cycle of a creator’s video or Reel is shorter and trends and virality can change by the hour, time is of the essence in acting quickly." She mentions assisting several creators, like Bhuvan Bam and Mallika Dua, register trademarks and enforce rights for the characters they come up with, or for catchphrases that they use in their videos and merchandise. 

A lot of this also comes from being aware of various laws and IP rights that are designed to protect and give their work the validity it deserves. Knowing how one can safeguard themselves is the first step to enjoying creating content openly. As a lawyer, Khamani suggests a few basic steps or best practices that creators can use to start protecting their content.

Educate yourself and invest in protecting your rights.

"Without trying to sound preachy, I do want to say that it’s so important for any creator to form a broader base of knowledge about their rights and be invested in the protection of their work." Creators can ensure early protection by clearly documenting their work and collaborations with fellow creators. Half their battle can be won if they can register their work in the relevant category, if they can be trademarked, issue takedown notices through platforms, and if there is an infringement of their work. "It is essential to know which way to look for the kind of content or art you make." 

Understanding how copyright and trademark work

Copyright protects the expression of your ideas, like a song or a script, while trademark is useful to restrict others from using a logo or a unique tagline that’s integral to your brand. It would be easier to always have them in writing or by keeping records. "Whether it's a video of you working or communication with collaborators, documentation is vital in case a dispute arises. It can be as simple as a dated email containing the work." According to Khimani, having the right set of people who can advise you on the use and misuse of your work is important. And often, having an attorney look into the paperwork is the also helpful.

Khimani breaks down specific protections under Indian copyright law (or relevant jurisdictions) that digital creators should be aware of -

"In India, the Copyright Act, 1957, is the primary legislation that governs copyright law in India. Creators should be aware of the types of works eligible for copyright (literary, dramatic, musical works, cinematograph films and sound recordings, amongst others)." She highlights how copyright is a bundle of rights that includes reproduction rights, public performance rights, and the rights to make derivative works. "If you create copyrightable content independently, you're likely to own exclusive rights over your work. However, if you routinely collaborate with other creators, agencies, or brands for partnerships and endorsements, you should record the terms of your collaboration in writing and clarify what rights you are entitled to."

In addition to the economic rights discussed above, Khimani talks about how every creator is also entitled to moral rights, which ensure the author's credit to the work and prevent actions that could harm their reputation or the work itself. "If someone infringes on your work, it is important to be aware of your rights and approach your attorney at the right time to ensure swift legal action. If you wish to use someone’s copyright-protected content, ensure that you secure the required permissions and licenses for it ahead of your intended use." Considering how essential various platforms are for content creators, the Digital Millennium Copyright Act (DMCA), an American legislation that governs takedown processes on popular US-based platforms like YouTube, Instagram and Facebook, is another protection that creators should be aware of.

These laws are designed to safeguard individuals' ideas from being used without their permission. However, as creators post their ideas on platforms that often capitalize on them under the guise of being 'trending,' the effectiveness of these laws may be called into question. One thing Khimani wants creators to know about initiating copyright claims is that, in compliance with the DMCA, most platforms have simplified processes to make them more accessible to users. With dedicated online forms, the users only need to attach a URL of the infringing content and agree to the declarations provided to claim their rights. "However, creators need to be careful. Submitting false or mistaken claims can backfire, especially if the content in question falls under the defence of ‘fair use’ or isn’t actually infringing. The owner of the infringing content also has the option to file an appeal against your claim and have it reviewed. In this case, you might have to justify your claim as the original rights holder to the content. At this juncture, it would be prudent to consult a legal professional to assess your case and take the best step forward. Being entirely sure of your position is crucial because repeated lapses in the application process could lead to your account being suspended or disabled."

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Registering content and the types of content worth registering

The two forms of IP rights that Khimani would want creators to be largely concerned with are copyright and trademark rights. "Copyright protection is automatic and vests the moment a work is created and fixed in a tangible medium, like recording a song or writing a script. Having a published record of your work is enough to secure a copyright and no formal registration is statutorily required in India. It is wise to record evidence of your date of creation of the work, which, like I mentioned before, can be as simple as emailing the work to yourself." The only benefit that registration of a copyright provides, according to Khimani, is an official and publicly searchable record of your work and stronger evidentiary value in case of disputes. "Additionally, if you routinely use characters or catchphrases that are distinctive to your content, you can also file for a trademark registration. For example, Bhuvan Bam has secured a trademark registration for his skit character, ‘Titu Mama’. The best option is to assess what your revenue-generating assets are, like popular characters or unique taglines, and then take a call on whether trademark registration for this asset is beneficial for your brand."

While we continue and talk about fellow creators copying content and using it, one cannot ignore the rapid growth of generative AI and remix culture. Knowing how the legal definition of ‘original work’ is challenged and if there are existing laws that are keeping up with this growing threat to the creator economy is equally important. Khimani realises the advancements in AI-generated art, music and even digital video content, which is often not discernible from those made by creators independently. "As we know, AI relies on pre-existing data to provide its output and so the lack of originality in such work is apparent from its creation, and more often than not, the work that it relies on is unauthorized and not in the public domain."

Highlighting the case that saw The New York Times sue OpenAI and Microsoft for using their articles to train LLMs (large language models) that regurgitate their content, as well as ANI in India that challenged OpenAI’s use of their content, Khimani talks about how there are laws that protects original creators from AI's impact on their work. "While the courts are yet to opine on both these matters, it will be interesting to see the developments in the space in understanding ‘original work’. The existing laws are evolving their framework to be more adaptable to global platforms that allow rapid content-sharing, but we have a long way to go in terms of actually understanding how to regulate AI-generated content."

One thing is for sure, people will always find a way to be 'inspired' by someone's idea, making it essential for creators to register and safeguard their own properties. As Khimani emphasises, creators need to find their footing in the legalities of protecting their IPs. It's become even more apparent for them to make the most of tools like copyright and trademark, especially in this rapidly shifting digital and AI-driven landscape.

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