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On November 13, 2025, TAG hosted a Copyright 101 Lunch & Learn. Moderated by TAG Field Rep Mairghread Scott, it featured presentations by experts Jeff Trexler and Michelle Katz. Following is a recap of this event with links to handouts at the end.

MICHELLE KATZ
Independent Executive Business and Legal Advisor
mkatzlaw1@gmail.com

What is the difference between copyright, trademark, patent, and trade secrets?

• Copyright protects creative works that are in a tangible form—creative and totally subjective, but still usually has enough detail and is in some kind of provable or tangible form.
• Original trademarks is the law of branding. It protects brand owners for all the time and money they put in. For example, Oreo is a cookie, and trademark protects consumers because they want to get an Oreo when they pay for one and not a seaweed cookie with white fish paste in the middle.
• Patents can protect the kind of inventions and creative work that aren’t protected by copyright. Note: The drawings of your invention are protected by copyright, but the idea behind it is not.
  • Design patent: What does your invention look like?
  • Utility patent: How does your invention work?
• A trade secret is when you don’t want to spend a lot of money protecting something or you don’t want it to expire, so you keep things secret, you mark them secret in your business, and you don’t leave them out in the open. This is not as powerful as the above ways to protect your work.
  • An NDA is a non-disclosure agreement. It’s also known as a confidentiality agreement. You can protect your work, and other companies and people will protect their work, by having a person sign a contract which says: “Hey, I won’t leak your secret stuff.”

Copyright Overview

Copyright protects creative work with some detail—original work in a tangible form. (Tangible includes electronic.) Why tangible? Back when this was created at the time of the Constitution, it was tangible so you could prove that it really is and was yours. If you can’t show when the work was created by having some proof in a tangible copy, you won’t be able to protect it.

Important to note: You own your copyright the moment you create a work, unless it has certain exceptions (to come). You don’t have to register your work; the reason you register it is to be able to enforce your rights.

So, what do you get when you obtain a copyright?

You have this basket of rights. It’s not one thing. It’s many, many eggs in this basket, and one is you have the right to control any kind of copies. You have the right to control distribution or performance, like singing the song that is my copyright creation, displaying my work in a gallery, or putting it on social media. And you have the right to control new works that have some or all of your work in it or are so similar, even if they don’t have one single thing that is exactly the same. If it has that same look and feel, then you control somebody else using some or all of your work.

• Copies
• Distribution
• Display
• Performance
• Derivative works

If you want to sue to protect your rights because someone used any of these without your permission, you must register your copyright.

• Copyright lasts 70 years after you create it.
• Copyright lasts 120 years if a company creates it, including if their AI or their employee creates it, or 90 years after they first release it.

Licensing Rights

You have the right as the author, or the people you create a work with, to sell and give away your rights, but you don’t have to give away the whole copyright. You can license your work. Licensing just means letting someone use it in a particular place for a particular period of time in a particular way.

Who Owns a Work?

If you are an employee, which means that your employer takes taxes out of your paycheck, you receive benefits, etc., then your employer will automatically own your creative work that you do as part of your job—or even if it’s not part of your job, if you do it while you are at work using their materials, their time, and their equipment. In places like Disney, they have in their employee manual that they don’t own the work you do on your own, but they have the right to buy it from you or license it from you before you let anybody else do that.

Jeff Trexler: You really have to pay attention to your employment agreement. I have run into people who work for jobs where their work claims 100% of the intellectual property that they create while they are employed. That means the doodles you do on your own, or you come up with some other concept, if you’re in that kind of an employment agreement, your employer could lay claim.

For example: I knew a professor who wanted to do a comic. He was asking  IP questions, and having been a full-time professor myself, I said, well, have you read your employee handbook? What does your contract say about your IP? He looked at his school’s employee handbook, and it said that the university laid claim to all of the intellectual property the employee produced.

Michelle Katz: I think that’s not actually enforceable, but that doesn’t matter. You’re not going to spend the money to defend your rights. It’s so expensive.

Jeff Trexler: So how are we going to approach this? How are we going to negotiate this with the university? Many people in the university may not have even known about that provision, or wouldn’t have thought to apply it, but we had to strategize what to do in that situation.

Michelle Katz: So now, what if you create a work with a bunch of friends? If everyone agrees that they’re creating something together, then they’re going to own it together, and unless you specifically put it into writing or have really tangible proof, you are going to own it equally. If that’s an issue, be clear about it, put it in writing, set your expectations in advance. And then, if you own it together, no one of the authors can sell or exclusively license any of the things in the basket without the prior written consent of the other authors.

For example: Jeff and I are co-authors [of a series of characters], and we don’t have an agreement written out. Disney comes and says, Michelle, we want to buy this. I can’t agree on behalf of Jeff. I have to get his permission before I sell it. Or if Disney says, we want the exclusive right, we want to be the only company that can make a cartoon out of these images, I would also need Jeff’s written permission. But if Nickelodeon comes and says, hey, we just want to do greeting cards non-exclusively [with these images], we don’t care who else does greeting cards, then even without Jeff’s permission, I could give them that. Note: Once I let someone have the non-exclusive right, there’s no way Disney will ever come back to us and say, now we want to do a whole series of your characters. Even if there are non-exclusive rights out there, most big companies and most purchasers, they don’t want something that’s got somebody else’s footprint on it.

Bottom line: When you’re a co-author [co-creator], put into writing how you want to handle things.

Work-for-Hire Contract

If you are freelance and do work for any third party, another person, a company, or a studio, you own the IP, you own that copyright unless there’s a signed agreement called a work-for-hire where your client claims full ownership. Now what if you don’t have that? Generally, even if you don’t have a contract, a court will give this person or entity that paid you some rights, but absolutely not the copyright. So, maybe you understood that you were just going to do some images for a handout or you were just going to edit this particular work for a particular purpose. It’s only that direct purpose that they’re likely to get for that [money they paid you, and] you have everything else.

For example, I give somebody my character by doing an editorial drawing for a magazine. They can’t make a cartoon out of it. They can’t make a movie about it. They can’t put it on t-shirts. They get at most—without a work-for-hire agreement—just what we agreed for me to deliver.

Note: A work-for-hire agreement has to be signed by you (the artist) and the client.

What Does Not Get Copyright Protection?

• When you create this original, tangible creative work, you immediately own it—unless it’s just a list of facts. But if it was a list of facts that rhymed, you might own that expression of the facts, but not the underlying facts.
• Names are not protected.
• Titles are not protected, no matter how interesting.
• Colors are not protected. Pantone, the color folks, made you think they own those colors, but they do not. They may have a trademark in how certain of the colors are used. They might have some trademark, meaning the branding of the name of the colors, but they do not own colors.
• Useful items and how they work are not protected.
  • Note by Jeff Trexler: [Per the Supreme Court], an artistic feature of a design of a useful article is eligible for copyright protection if that item can be perceived as a two- or three-dimensional work of art, separate from the useful article, and would qualify as a protectable pictorial graphic or sculptural work either on its own or in some other medium if imagined separately from the article.

Copyright doesn’t protect the fact that you worked really hard. For example: Let’s say you create a really amazing film projector, and you do all these drawings of it. Your drawings could be protected by copyright, but anybody could look at those drawings and make the film projector, and you would not be protected unless you had a patent.

Legal Notice

There is no legal requirement for you to have a legal notice—the legal notice that you’re familiar with is probably the very old fashioned one—©YEAR, YOUR NAME. ALL RIGHTS RESERVED. This should be the year you released the work, not the year it was created.

Allowing the Use of Your Work

What if you want people to use your work, but they have to give you credit, or they can reproduce your work but not get money from it. There’s a website called CreativeCommons.org, and they’ll tell you what kind of notice to put on your creative work.

Jeff Trexler: It used to be, back before the 1976 Copyright Act, which took effect on January 1st, 1978, that if you didn’t have the right notice or even the right form of the notice, the work would go into the public domain because the idea of the copyright notice was that you were sending a message to people that this was indeed a copyright-protected work. Now we’ve moved past requiring adherence to those formalities.

[If you register your work], registration gets you the right to get attorney’s fees and what are called statutory damages. But you have to file it within a certain time. And one key thing is that these damages are real incentive for somebody to settle with you if they’ve infringed on your work. [That said], there’s what’s called innocent infringement of the copyright. One of the things that the court can look at, or is directed to look at, is the copyright notice. If the work had copyright name, the year of publication, the more formal stuff, then the defendant can’t actually claim the “innocent infringement” reduction in the amount of the statutory damages.

What is Fair Use?

This is how you go through fair use in your head:

• Is the original work the one that’s getting copied?
• Is that protected by copyright? Not registered, but is it protected?
• Does the new work, for example, have some or all of the original, or is there an overall similar look and feel?
  • A copy does not mean that the work has a percentage of the same elements or all of the same elements. It means that it has the overall same look and feel.
• Is the new work newsworthy?
  • For example: Somebody at the entrance to Warner Bros. puts on a fire-protected suit and lights themselves on fire because they heard the lot is being closed. We all go and take pictures of this person on fire right in front of a sculpture. That means we’re making a copy of the sculpture without the permission of the copyright owner, but because it’s newsworthy, we can use that photo in a limited capacity.
• Are we making commentary on the original work?
  • If we’re commenting on that sculpture that’s in front of Warner Bros., if we’re commenting on the original work, we may need to take a photo of it and use the photo in our commentary in order to comment on it.
• Are we using the original work for research and education?
• Is the new work transformative?
  • For example: The Obama Hope poster. Shepard Fairey took as his inspiration and model a photo from the Associated Press of Obama sitting next to George Clooney. He cut out the Obama part, and he made that the center of his work with nothing else. Then he put different colors, the colors of the flag around Obama or through Obama. [There was a lawsuit], and the core to the argument was Fairey’s use was so different that it didn’t have the same message or meaning as that AP photo.
  • You can transform a work so that even if it has many of the same elements, its meaning and its message are really different.

In short: No matter what the fair use is, it has to be as small and narrow as what is absolutely necessary to convey the meaning of your use. And the marketplace for the original is not hugely negatively impacted.

JEFF TREXLER
Interim Director, Comic Book Legal Defense Fund
jeff.trexler@cbldf.org

Myths of Fair Use

Myth: The 30% or 7-Point Test
What is the 30% or the 7-point test, where if you make seven changes, then you’re okay? Those are not actual legal tests. The Supreme Court looks to a number of factors, and one of them is this degree of distinctiveness of the purpose and character of the work. There is no simple rule that if you make this percentage of changes, you’re in the clear. Three notes of a song can be a copy.

Myth: You give the artist credit.
That doesn’t mean that you’re off the hook for infringement. If you were on the internet, and there was no legal notice whatsoever, you’re going to be a little bit more of an innocent infringer. But you’re still infringing. Just because you’re doing a presentation for a potential production, it doesn’t mean that you can circulate your script or your comics to the world in order to get a gig. You are still using it to get the gig.

Fan Art

Some of the fan art that you see is tolerated by something of deliberate policy of benign neglect for creators in the animation field. I know one of the things that we get asked about a lot is, what about commissions? Suppose you create a cartoon, and then you are at a convention, and somebody wants you to draw the character that you worked on or some other character by the studio that you worked with. It really depends on the studio.

There are certain studios that have agreements that will allow you to do commissioned work apart from the work that you do on the actual characters that are used in a film, or characters owned by the studio, or characters on which you’ve worked for that studio. There are some employers that have a very strict rule against not doing that.

What if you’re an animator who does commissions at a convention, or maybe you do some by mail, but then you start advertising it online, and then you start selling them off your website. At a certain point, you could catch the attention of the company, and they may tell you to stop. The copyright principles are still there in terms of infringement. If it’s somebody else’s property and you’re creating it, you could be taken in for infringement unless they give you a license to do it.

Bottom line: You should never assume that it’s okay to sell your fan art. My practical rule of thumb is before you put fan art on your website, look on the internet and see how much fan art is out there. If there’s a lot out there, chances are it means that the owners are not interested in preventing it, but don’t assume so.

Spec Animation

Spec animation using various characters from video games, TV shows, and movies—how does that fall within the law? Well, it doesn’t. The idea is that it’s an unauthorized use of copyrighted characters, and sometimes they’re trademark characters and you’re using them without the permission or a license from the creator. You’re using it to get a gig. And you’re setting yourself up for some enforcement action.

But in the tradition of a spec script, if you’re going to break into the market, often you’re going to create a sample episode of a TV show that you don’t work on. But somebody reads it, sees you have talent, and off you go. Legally, it’s pretty clear. Culturally, you have to have a sense of what’s tolerated or not.

Mairghread Scott: There used to be a thought where, for example, if you wanted to show off your work to Marvel, you showed them a picture of Batman because you didn’t own it and they didn’t own it. So no one was going to steal anything from each other. If you were going to try and do that, would the best practice then be to keep that behind a password-protected website. Essentially, this is my portfolio that I’m allowed to see. Or does that not even help you?

There’s no demo reel exemption from copyright. There’s no demo reel exemption from trademark. We understand that there’s a culture of this where it can get you in trouble. Think of it as a risk calculus. The more public and accessible it is, the greater the risk.

There are people using AI bots to basically crawl the web looking for infringements of photographs, of animated work, of literature, whatever. Suppose you take a famous photograph or a series of photographs, and you create an animation based on it. If that’s accessible for one of these web crawlers, there’s a good chance that you could be getting a letter from [a] law firm demanding [damage fees] and attorney’s fees in order to license this work.

Michelle Katz: One more thing about registration. You get your registration not because you intend to sue a bunch of people, but because if someone does infringe your right, you say, look, do you want to pay me $450,000, or do you want to make a reasonable deal?

QUESTIONS FROM ATTENDEES

Publishing an ongoing work with suggestions from fans.

Mairghread Scott: If you’re putting out a web comic, let’s say, or you’re putting out a web animated series soliciting interactions from fans about what they think or what they want to do—does that really matter? As long as you are the one who’s creating the next episode?

Jeff Trexler: It’s a really, really key question in this era of social interaction, and the risks are huge. I know there are some people who essentially post the equivalent of a notice to anybody who’s interacting with them that if you are posting something here, you’re giving me this license to use it in my work without compensation.

Michelle Katz: I’m not sure that would hold up,

Jeff Trexler: It’s akin to the notices where you if walk through this area, it means you’re being filmed. But where I was going with it is it’s incredibly important to be careful in these things because a lot of what we’re talking about when we talk about the rule is this—you may not be able to prevail on the application of that rule without going through a lawsuit that can be incredibly expensive to defend. If you’re claiming fair use in your use of somebody else’s work, and they’re alleging infringement by you, you have to have evidence for it and arguments, and it can take years and hundreds of thousands of dollars.

Fan art with new unique elements.

Mairghread Scott: One thing that there is some precedent for is essentially someone creating fan art, and it being very good fan art involving some kind of new, unique element to a character. And the corporation that owned the original character takes the fan on and exploits remakes. It essentially takes that style of what you did for, for example, a Peanuts’ character, and that style shows up in the next Peanuts’ movie. Or you made a new twist on a Transformer, and that twist shows up in a toy. Does [the person who made the fan art] have any defense, even though it was based on an original toy?

Jeff Trexler: It’s really going to depend on what that new element is that you have contributed. I’m thinking about a case [where] somebody did Batman work, and they claim that they’d come up with some new elements, and they saw it in a subsequent Batman comic. Besides the question of proving DC even had access to this work, this guy created this basic thing using some motifs that are in Batman. It’s the question of how original was it? What aspects of it were original?

If you’re adding shoulder pads to something, a really unique shoulder pad that you can considerably, conceivably abstract away from [the original] that you’re adding to, you might be able to prevail. But that case is going to be technical, it’s going to be hard fought. The odds of winning are not great, and I think it’s why there’s a significant disincentive in our law when it comes to using your creativity on somebody else’s property.

I know in this area it’s tough because we’re not just talking about doing fan art, but one of the questions I’ve had for years, most common in comics and fashion and animation, it’s that people submit their samples to a company for a job, and then they find that their sample animation is a feature five years later.

This is where knowing the reputation of companies, or taking steps to protect yourself with registration, things like that can be helpful. Also, reading agreements, because there are companies that will sneak into their job descriptions that you’re providing these samples for them to use.

AI and Copyright

Jeff Trexler: Right now there are a ton of lawsuits about AI being used to copy trademark animation. Technically, material created by AI is not copyrightable because the idea is that it has to have a human creator, and there’s contested territory over what degree of creativity is evident in a work, say, with a highly detailed prompt.  

We had an issue in the comic space where somebody created a comic using AI, arguing that there were significant creative elements. They got it registered, then they trumpeted it all over the news. The copyright office people read news sites, and said, oh, you created it using AI, but you didn’t fill out that section of the copyright registration where you were supposed to have disclosed that. Therefore, we’re going to take this back. You have to be careful if you’re going to be registering something like that.

Submission Agreements

Michelle Katz: When you submit a work to any kind of production company studio, many of them will require you to file a submission agreement which says you make no claim because you understand that any idea you have, they’re already thinking about and working on. Does that mean that you absolutely shouldn’t register your work before you send it to them? No. Still register it. And this is why you always want to find a person who can receive your work, not a department. [Departments will] require these submission agreements, which means often you’ll give up your rights to your work.

Jeff Trexler: Say you take a test for a work-for-hire position at a studio, and you sign an NDA. You don’t get hired, but the studio uses the assets you made in the task. How does protection factor in this scenario, if at all? Again, if you weren’t employed by them and you didn’t sign anything saying that this was a work-for-hire, technically you would own the copyright in that. But realistically, you as a creator are looking for a job. If you sue somebody for taking the work that you provided in that job interview, you could find yourself blackballed in the industry. That’s just reality.

Mairghread Scott: On the union front, we have rules around testing: testing for a significant time is supposed to be compensated. If you did do a test, and you were not paid for the test, and you believed that you could reasonably prove that your work was used, that would definitely be regardless of the copyright law. The Union would consider that to be an infringement, and there would be the option of filing a grievance on your behalf as a violation of our contract separate from copyright. That’s why we encourage and have been pushing for people to get paid for testing, because we also know that especially in our industry, when you take a test, you are asked to essentially sign your rights away. There needs to be compensation for signing your rights away.

Public Domain

Mairghread Scott: Is there a reliable source of information for what is and is not public domain?

Michelle: Anything published before 1924 is now in the public domain. Anything created by the federal government is generally in the public domain. Anything that was published in the fifties or sixties in a magazine, and there’s no copyright notice, it’s public domain. 

See Michelle’s public domain chart here.

Work used by unauthorized party

Jackie Huang: Could you talk a little bit about an issue I’ve seen some of our artists face, which is they do a 2D drawing or a design or even a product, and then they find out later a large company like Shein has stolen their work [and] is making replica pins or knockoffs or putting it on mugs. Or they find it on a Zazzle site by another user. What options do they have to enforce their copyright? Do you recommend them to get a lawyer, or do they just write to the corporate headquarters? And if they get no response, is there anything that they should or could do?

Michelle Katz: I always say, take the first step yourself because then you can escalate. If you know who the person is, you’d send them an email, you’d send it to Zazzle, and you would say, I just saw or I just found out that this has happened, this is my copyright-protected work, and I did not give you permission to use it. Please stop immediately. Let me know how many you sold and that you’re going to stop using it. I’d like to hear from you within two weeks. And you may get a response. You may not. If you don’t, you can follow up one more time and say, I sent you this, I really hope to avoid legal conflict, if I don’t hear from you, I’m going to consider all of my legal options. (Note: Even if you haven’t registered, the work is copyright protected because you own the copyright in your original tangible creative work.)

Jeff Trexler: There are lawyers who will do some of this work pro bono. There are law schools that have clinics in the intellectual property space or clinics that are geared toward helping people in the creative arts. So you could get a co-sign by the attorney that will then provide a little bit of a show of force—that can help, as well. Particularly for emerging creators, people who don’t have a lot of money to pursue these sort of things, you may be able to find some lawyers willing to do it for very little or even for free.

Sharing portfolio work

[Recruiters] want to see professional work that you’ve done, but you technically don’t own the rights to your professional work anymore. The unspoken rule for a lot of studios is if the work has been released publicly already, they’ve published it or they aired the episode, there’s nothing that you’re showing that hasn’t been released. If it’s unpublished, you shouldn’t put it up even under a password-protected place because sometimes, if you show one recruiter, they’ll say, oh, that wasn’t released and you’re showing our competitor what’s coming up on our slate later.

Some studios are a bit more strict about it. Disney is very strict where their animators have to give them clips for their reel that are pre-sanctioned. It also depends on the quality of the work that you’re putting up. If you’re putting up super high-res PSD files of backgrounds that were in an episode for two seconds that people can just rip, that may be an issue. If you’re unsure whether or not you should put it up, it’s better to be cautious and not do it.

Mairghread Scott: Most companies do have a policy about how to display portfolio work. I would have a conversation upon your hire—what is the company’s policy? Get that policy in writing. Because now we start moving away from copyright law. We start moving into, especially if it’s a union company, what were you told the company approved? Are they applying the rules fairly? I don’t think it would be inappropriate or unexpected when you started a job to say, I’d like to know the rules for approval for how I can display this work in my portfolio. If there are any rules, I want to make sure that I follow them.

RESOURCES
If you find a resource online, check the date. Laws change over time, and you want to make sure you are using the most current resources.

Handouts from Jeff Trexler:

Copyright, Trademark, and Right of Publicity Law for Comic Book Creators

Handouts from Michelle Katz:

Presentation for TAG Lunch & Learn

Intellectual Property on One Foot

Additional resources:

General information on copyright law: Copyright.gov

Nolo Press publications: store.nolo.com/products/intellectual-property

California Lawyers For the Arts

Keyframe article: Intellectual Property

Please note that the above information should not be construed as official legal advice. This summary is intended to serve as an introduction to copyright law. Consult an expert for specific issues or questions.