Study Hall AMA: Copyright lawyer Alex Feerst

As part of Study Hall’s partnership with Prototipe Media, we hosted an AMA with Alex Feerst, a copyright lawyer who works for the production company. He was previously Head of Legal at Medium, the president of the San Francisco Intellectual Property Law Association and a non-residential fellow at Stanford’s Center for Internet & Society. On March 15, he hosted an AMA and answered questions about copyright law, various different types of intellectual property and Prototipe’s model for bringing journalism to Hollywood.

This AMA has been edited for length and clarity. Editor’s Note: some questions were rewritten to protect participants’ identities. 

Can you share a bit about your professional background and expertise?

I’m a lawyer and work with media and tech companies. I was General Counsel at Medium for about four years, where I worked closely with journalists on our in-house publications. I now represent web publications like BoingBoing, podcast companies like Ten Percent Happier, publishers like Bindery Books, and video game companies that license IP, like Hidden Door. 

Earlier in my career I worked at Stanford’s Fair Use Project, where I litigated cases pro bono for artists (such as representing Shepard Fairey in a case related to [his] Obama “Hope” poster) and helped documentary filmmakers with their copyright clearance to obtain insurance in order to distribute films at festivals and online.

Do you have any advice for how to successfully negotiate to retain rights in a contract with a publication so that in the future, one could write a book, or make a podcast or film?

It’s increasingly common for publications or employers to want very broad rights (related to all media) and for unlimited duration. In that [type of] negotiation, you would want to push back to [whatever] extent possible to (1) narrow the bundle of rights they are getting so that you keep the ones you hope to use independently, and (2) potentially do other things to narrow what they are getting, such as limiting the duration of how long they get [that bundle of] rights. Or, [you can try to] include terms that if they use those broader rights that you would get some kind of revenue share (some % of what they make) and/or keep some creative control such that you need to be involved and have sign off on any downstream uses of your IP. 

It’s helpful to think of ownership as a bundle of twigs. Each twig is one right (the right to make copies, the right to make a movie, the right to make a podcast, etc). So when we do a license contract, that is a way of moving rights around from party to party. So, we can limit both which twigs we give up or don’t give up, and put various constraints on it, such as time duration or contingency. 

fFor example, one thing you might do is give [a publication] an option right with a limited time duration. That would work like this:they have one year from the date of the contract to make a podcast or documentary based on your work. If they don’t do this within one year (or whatever), then the right “reverts” to you and you can do whatever you want in that area.

This is a common way that media rights are often structured, with an option window, based on the idea that if they don’t do something with it, then it’s better for you to get the right to do something with it than for it to sit there and benefit no one.

But they can play ball or they can say no, and this is mainly a function of how much leverage they believe you and they have, and whether you have other options where you might sell the work if you don’t like their offer. As in any negotiation, there’s nothing like having more than one offer to increase your leverage.

How common are contracts that ask you to sign over “moral rights”? Are there any resources for journalists to understand the copyright aspect of their work?

Different countries have slightly different motivations that animate their copyright systems. The two main ones we deal with in the US and Europe work like this: the US and UK systems are fundamentally based on an economic theory of motivation and productivity. Copyright exists because it gives creators rights over what they create, and those rights can act as a bottleneck and therefore a “toll booth” to allow them to get paid in exchange for giving others access to those rights. And this is good because money both allows creators to spend time creating (rather than doing other side hustles) and also incentivizes them to do this work. 

The Continental system also has this thinking, but it also embeds what is sometimes called “the Hegelian theory” which says that creators, when they create, imbue their works with the imprint of their personality. Beyond the bare economic rights we want to give creators, we want to give creators some control over how their work is used and presented because at some philosophical level, it would be wrong for the creator to lose total control of their work and its reception. So, countries like France and Germany embody these rights of control in what are called moral rights. 

The USA has almost nothing like this (other than one law called VARA that gives visual artists certain rights over things like murals and statues, there was a recent case about graffiti at Five Pointz in NY about this). 

So, when you do a contract, there is often a section that says something like, “to the extent I have any moral rights in this work, I am waiving or transferring them.” And the reason for this is that if you are allowing the counterparty to do various things with your work, they don’t want any residual moral rights to block them in the future. They want to make sure they can do the things they plan to do. 

Since moral rights, from an American point of view, can be sort of squishy and unpredictable, it is common to have a moral rights waiver. In my view, this is not a big deal and not something to be afraid to sign. It basically is a way to give the other party some sense of safety that any extra rights you have to control the work that could interfere with their future plans are dealt with in this contract.

If a journalist writes an article, how can they make money if it gets adapted?

Intellectual Property is a broad category of law.wWithin IP law there is (1) copyright (2) patent (3) trademark, and (sort of) (4) trade secrets. So, copyright is a type of IP law, and the main one that affects writers and journalists. There are other types of law that affect your work, but the main IP category is copyright so I’ll stick mainly with that today.

I like to think of IP in general and copyright in particular this way:when you make tangible goods (like widgets or spoons or furniture or whatever) there is an obvious way to turn your work into money. You sell physical goods for money. Then you make another. Because tangible goods exist in physical space, they can only be used by one person at a time so the natural world creates scarcity and a market for your goods. 

Services also somewhat work this way, in that if I sell hours of my time, there’s only so many hours in a day and I can only do one thing at once because I can’t multitask.

IP puts our abstractions in buckets with labels and handles so that we can manipulate them and move them around and engage in economic activity. As a creator, when you create something in tangible form (such as a written story, or drawing, or photo, or film), you automatically have certain rights in the thing you created. You have the right to make copies, distribute, publicly perform, and create derivative works (such as translations, adaptations, sequels). This is a “positive right” in the sense that you are allowed to do certain stuff. And perhaps more importantly, you can stop other people from doing that stuff. These are your “negative rights:”the rights to stop others. 

Again, if I buy land, I can both hang out on it and enjoy it, but more importantly, I can tell other people to leave. This is how we monetize. By selling or renting or otherwise manipulating those rights that are inherent in us when we create something and copyright law says that we “own” [our work] which gives us exclusive control as the creator.

Can you talk about how copyright works with unscripted documentaries compared to scripted films? 

It differs both legally and  pragmatically in terms of how those different types of projects get made and financed. A funny thing about copyright is that you can’t copyright facts. When you make a documentary, the thing that you’re really doing that makes your participation useful in a project is (1) your knowledge and expertise on the subject (2) potential access and relationship that you have with the key people or key documents.  Documentaries are generally made on a much more modest budget than scripted [projects] so, the rights to do a documentary are economically generally different than the rights to do a scripted show (which is generally worth more, though arguably, the likelihood that a story becomes a scripted show is lower). 

Can you elaborate on Prototipe Media’s model?

Prototipe is changing the IP model by proposing a new system: what if we took the proceeds we get when a feature gets made (which is a pretty rare event, but could be a decent amount of money, in other words a low probability of a high revenue event) and then send those back to the front of the supply chain in the form of grants to writers? So, you would get a $1k story grant, write your story. In exchange, Prototipe gets the option to later try and sell your story (once it exists) to turn it into a doc or movie. And then you would get a percentage of anything Prototipe makes.

So, the goal is to inject the money from stories made into films back into the writer ecosystem, give writers a marketer from day one selling their story, and bring them along for the whole ride both economically ([with Prototipe] the writer gets a % of everything) and also creatively (the writer stays involved with any projects that get made from their story). Every system needs economic and structural innovation, and hopefully this experiment will lead to more grants for writers chasing stories,more docs and more features made from a broader range of writers’ work.