Creatives’ legal FAQ: lawyers answer the big questions creatives always ask them

I’m scared about my work being stolen by AI models. What can I do to protect myself?

Studio Legal: One unfortunate truth: the law lags behind technology. Although several lawsuits have been filed against AI companies, they have not yet been resolved–and it could be years before legal decisions are handed down.

If you want to ensure that AI models cannot use your work as inputs, you can make your works less accessible to AI “crawlers,” such as limiting the works you display online or keeping the majority of your work behind a password-protected webpage. When you do upload your works publicly, you can make them less visually appealing: degrading the quality of those works or adding watermarks.

In addition, check if the program(s) you’re using offer settings to opt out of AI training. Meta, for example, offers opt-outs for EU and UK residents, and other popular applications (such as Adobe, Dall-E, Tumblr, and Squarespace) also offer opt-out settings. Not all third-party AI models honour the opt-out, but it’s a start!

Harper James: AI uses vast sets of data for training with little if any regard to copyright law. Not only can AI copy your work, AI can also produce works that are confusingly similar to yours on an industrial scale.

Whether you’re a writer, photographer, composer or coder, copyright gives you the legal right to control the use of your work. To protect yourself you can add a watermark to your work or add a digital signature. You can also use online brand monitoring software to proactively protect your brand online by monitoring e-commerce marketplaces, social media platforms and web results for any unauthorised use. If you have good grounds to suspect infringement, you may have the right to take legal action against the infringer.

When can I use other people’s images I find online in my work, and how do I credit them properly?

SL: Don’t!! Because usually you can’t - at least not without obtaining an appropriate licence (legal jargon for a right to use copyrighted work) from the copyright owner. We see this mistake all the time, and it has resulted in some of our clients receiving nasty cease-and-desist letters and not being able to use the work at all. In the worst case scenario (which is far more common than you might think), you may even have to pay the owner in order to avoid further legal action.

There are some narrow exceptions, like works that are in the public domain (meaning they are no longer owned by anyone) or that are clearly licensed under Creative Commons or similar - but remember that you likely still can’t use it for any purpose whatsoever and may need to provide specific credit if you do.

If you think your use of a copyrighted image falls under “fair use” (US) or “fair dealing” (UK), really take time to understand what qualifies as “fair” and, ideally, also consult a lawyer for an opinion on your contemplated use. In our experience, it’s often narrower than you think.

Always tread very, very carefully when trying to use other people’s images in your work. You often are not permitted to do so.

HJ: You should respect the rights of other creators online just as you would expect people to respect your rights. It’s unlikely that you will get permission from everyone whose work you might want to use, although it is a possibility. A more practical option is to look for material that the copyright owner has labelled as free to use, or to look for images that are published under a Creative Commons licence or something similar.

Is there a standard copyright notice I can share? When should I be using watermarks?

SL: Fun fact: in the US, UK, and several other jurisdictions, you don’t need a copyright notice to have a copyright in your work. By virtue of creating it in the first place, you have a copyright in your work. That being said, a copyright notice can make a potential infringer think twice before reposting your work. It doesn’t need to be fancy–a simple © followed by the year and your name is plenty (“© 2024 Studio Legal LLP”). The same applies to watermarks: they aren’t legally required, so it’s up to you if and when you want to use them. A watermark makes it harder for someone to simply copy and paste your work directly, but it also affects the aesthetic of your work and overall account or page–it’s your call how you want to balance these considerations.

HJ: The Intellectual property office (IPO) says the standard form of copyright notice is the word “Copyright” or the encircled C symbol followed by the year of publication and the name of the owner. A more elaborate notice might be helpful, though – a good copyright lawyer can help you get something drawn up that is right for your circumstances.

What should I look out for when signing a contract, freelance or full-time?

SL: Reviewing a contract is more difficult than you might think. Especially for important relationships or engagements we highly recommend reaching out to a lawyer. Even 1-2 hours of lawyer time for what we call a “red-flag” review and edit is significantly better than going it alone. That being said, here are some tips.

A freelance commission:

• Limit rounds of feedback/revisions: think about where the engagement could end up being a costly drain on your time. Cap the number of concepts that will be presented, be clear about what you will and won’t provide in each phase and limit the client's ability to make you re-do work.
• Termination: make sure the client can’t drop you mid-project, and even worse, without any compensation.
• Ensure the contract actually reflects the agreement: surprisingly, this is the most common error we see. Your contract is the agreement, not what you may have said before. Make sure everything you’ve discussed is in there and everything in there is what you are willing to agree to.

HJ: A freelance commission: You need a comprehensive agreement covering all the aspects of your freelance work, like getting paid as well as copyright ownership. And a true freelance contract should be very different from a contract of employment, so there are pitfalls to watch out for, you don’t want to find yourself being considered by HMRC to be an employee. There is no rule to say that a freelancer must own copyright in what they create, and it could be transferred to the commissioner (but to be effective the transfer has to be in writing and signed by you): if you’re going to retain the copyright, though, the commissioner will need permission to use it – a licence, which might be exclusive, worldwide, perpetual and royalty-free depending on the circumstances. The main thing the commissioner will want is to know that you aren’t going to sell the same material to their competitors!

The contract should also, in most cases, contain a clause asserting your right to be identified as the creator of your work. This can be important for building your reputation.

A full-time creative role: This could be a freelance arrangement or an employer-employee relationship, and you need to be clear about which. If you are employed you might still be allowed to keep your copyright, but the contract will have to say so clearly.

Your right to be identified as the creator of your work is very limited if you are making copyright material as an employee, but if you’re employed as a creative worker your employer should be prepared to agree to acknowledge you as the creator. A contract term can achieve this.

What are some commonly misunderstood terms to look out for?

SL: Licences: A licence allows one party to use the other party’s property, for example, a copyright. When someone gives you permission to use a photograph on your website or a short story for your screenplay, that is a licence. Licences need to be very tailored in order to work. In our experience they often aren’t, either because they are written in a way that gives away too many rights, or alternatively, don’t include enough rights to meet the demands of the project. For example, it may make sense to licence the right to make translations of your short story to an online publisher, but you may not want to give them the right to make a movie out of it.

Indemnities: These are very important to look out for, but are almost alway glossed over. An indemnity is typically a promise by one party to repay the other party’s costs and expenses in the event that things go wrong. For example, a photographer might ask for an indemnity from the client to pay her back for the cost of any injuries that may happen on set. Indemnities are very complex, and can result in you being on the hook for a significant amount of money.

HJ: The main area of misunderstanding here concerns when someone is employed and when they are a freelance contractor, along with the associated issue of who owns the copyright when a contractor has been paid to do the work. This will need to be addressed in a carefully considered and well-drafted contract.