Lorraine Fleck - Hoffer Adler LLP

Name: Lorraine Fleck
Company: Hoffer Adler LLP
@lorrainefleck @HofferAdler

Lorraine is a trademark lawyer at Hoffler Adler LLP. She visited us to give us some information about copyright and how it applies to our work. All written content in this post was taken from the slides she provided to us.

What is Copyright?
The exclusive right to reproduce original content and stop others from reproducing that content. Means that you must get others permission to use their content unless your activity falls within an exception to infringement. Applies to the Internet! The laws in Canada and the US can differ dramatically.

What Does Copyright Protect?
Original literary, dramatic, musical, and artistic works.

• Literary works include books, pamphlets, magazines, newspapers, tables, computer programs, compilations of literary works
• Dramatic works include choreography, written music, movies, and musical plays
• Audible musical works include music with or without words
• Artistic works include paintings, drawings, maps, charts, plans, photos, engravings, sculpture, crafts, and architectural works such as buildings, sculptures and models

How is Copyright Created?

• The original work is created by a Canadian citizen or citizen of a Berne Convention country
• The work must come into physical existence; copyright does not exist in ideas
• If the work is published, the work is published in Canada or a Berne Convention country
• No need to register or mark (e.g. © 2012, Lorraine M. Fleck)
• Registration is a rebuttable assumption of copyright that can be useful for litigation purposes
• Best to register early; Canadian courts are skeptical of registrations obtained shortly before or during a lawsuit

How Long Does Copyright Exist?
Depends on the type of work and whether there are joint authors. For example:

• Most works: Life of the author + Rest of the calendar year in which the author died + 50 years
• Joint authors: Term lasts to the end of the 50th year of the last author dies
• Unknown author: Lesser of the end of the 50th year after publication OR 75 years after the work was made
• Photographs: To the end of the 50th year from the making of the initial negative
• Movies: To the end of the 50th year from first publication and if not published, 50 years from the making of the movie
• Sound recordings: 50 years from when first recorded
• Broadcasters: 50 years from communication

Who Owns Copyright?
Usually the person who creates the copyright work but there are exceptions:

• Photographs: The first person who owns the negative of the photo (not always the photographer)
• Employees: Employees are the first owner of works created for the employer by the employee

Who Can Use Copyright Materials?

• The owner. Ownership can be transferred, but must be in writing. The ownership transfer agreement usually is called an "assignment".
• Anyone who has permission ("license"). The terms of the license dictate what the "licensee" can do under the license. The fee paid under the license to the copyright owner ("licensor") is a "royalty".

Be careful with "royalty free" content!

• Each site has its own terms governing content use
• Many sites only allow non-commercial use
• Commercial licenses are often restricted e.g. number of copies, territory
• Read license terms carefully
• Know how the content will be used before purchasing a license to avoid wasted $$$

What is Copyright Infringement?

• The making of an unauthorized copy
• There must be a "substantial" portion of the material copied
• No hard and fast rule as to what is substantial
• Test is quality, not quantity: Does the copy take enough of the work so as to convey at least a portion of the value of the work?

Two types:

1. Primary: A copy is made without permission (e.g. copying most of a magazine article, pirated software)
2. Secondary: The sale, rental or distribution, or display or possession for that purpose, of an unauthorized copy provided the person in possession of the copy knows it was an infringing copy (e.g. bootleg DVD stores, file sharing)

Are There Exceptions to Copyright Infringement?

• Yes, but under specific circumstances
• Major category is "fair dealing": Research/private study, Criticism/review, News reporting
• While not limited to private or non-commercial contexts, not very useful for advertisers. No advertising specific exception.
• Parody is NOT currently an exception in Canada

What factors are used to assess what is "fair" in the context of "fair dealing"?

1. Purpose
2. Character
3. Amount
4. Nature (of the work)
5. Available alternatives
6. Effect (of the dealing on the work)

What are Moral Rights?
The author's right to:

1. Retain the integrity of the work;
2. Not have her/his work distorted;
3. Have his/her name associated or not associated with the work

Activities must be shown to be to the detriment of author's honour/reputation.

• Cannot be transferred, but can be waived
• Can prevent you from altering content or prevent your content from being altered, unless there is a waiver
• Term is the same as copyright in the work

Bill C-11 Highlights

• The Copyright Modernization Act is the fourth attempt at reform since 2005
• Canada's copyright act has not been significantly amended since 1997
• Some of the significant changes that affect those in web design and advertising include: The "mash-up" exception, changes in statutory damages, exceptions for parody and satire

Bill C-11 Hightlight: Mash-Ups

• Infringement exception for non-commercial user generated content created using copyright material legitimately obtained by the creator
• Applies to non-commercial uses only
• Could affect the market for the works used to create the mash-up (e.g. translations, sequels)

Bill C-11 Hightlight: Statutory Damages

• Would cap statutory damages against individuals who infringe copyright for non-commercial purposes to $100 - $5,000 for all works in the lawsuit
• Currently, statutory damages are $500 - $20,000 per copy
• May result in less deterrence for large scale infringers

Bill C-11 Hightlight: Parody & Satire

• Most relevent for web design and advertising
• Parody: The original work is ridiculed
• Satire: Use of the original work to mock someone else
• No need to identify source/author as for criticism/review and news/reporting
• While parody and satire exceptions will give those in advertising more tools to create content, they still need to be careful
• Parody and satire may infringe trade-marks and result in defamation
• Use of content must be "fair": do not use too much and avoid impacting existing opportunities for content owner to exploit copyright

Can you use a copyrighted image if the image is no longer recognizable?
Depends. No if the alteration impacts the ability of the copyright owner to exploit the work. Even if that is not the case, if the distortion negatively affects the creator's honor / reputation, then no because the distortion would affect the author's moral rights.

What happens if you are accused of using copyrighted material? What are some of the consequences and how should you approach resolving this matter?
Usually, the plaintiff's lawyer will send a demand letter. If the matter cannot be resolved at that stage, the copyright owner may sue. The limitation period is three years. Criminal proceedings are also available, bur rare.

Remedies for copyright infringement include:

1. An injunction. The only available remedy if an infringer can prove (s)he had not reasonable basis for knowing copyright existed/was infringed
2. Damages and profits or statutory damages (currently $500 to $20,000 per copy)
3. Interest, punitive and /or exemplary damages, "delivery up" of infringing materials and "costs" (payment of plaintiff's legal fees)

A copyright dispute can be very expensive money- and time-wise, with each party's legal fees easily exceeding $100,000 or more, and a lawsuit in Federal Court currently taking two years to reach judgement. Proceedings in Ontario Supreme Court can take considerably longer to go to trial.

When blogging about other people's work and wanting to post images we find online, is there a hard and fast rule about how we should credit the original author? What should we be wary of when doing this?
OK if doing for criticism/review or news reporting, provided you credit the author by mentioning:

1. The source; and
2. if giving the source, the name of the author (in the case of a work); performer (in the case of a sound recording); or broadcaster (in the case of a communication signal)

Otherwise, an infringement, even if the author is mentioned and the above information is provided.

How can we best protect our own work that we post online that might get picked up by other people?
Some tips:

• Disable right-clicks (but will not work with the tech-savvy)
• While not legally required, copyright noticed and website terms of use on your own sites can be a deterrent
• Register copyright in commercially important works that might get infringed so you have your registration in advance of litigation

What exactly are the ownership rules of the social media / blog sites like Facebook, Twitter and Wordpress?
As of writing:

• You own your content on Twitter and Wordpress
• Facebook has a license to all your content until your account is deleted, unless any content is shared with friends
• Pinterest has a perpetual, worldwide license to your content

I have a few older design projects from school where I don't know where I found the images, and they are currently online. If I wrote a sentence saying it is student work, is this enough?
Unfortunately, no. There is no copyright infringement exception in that case.

Alexander Younger - Design Lab

Name: Alexander Younger
Company: Design Lab

Alexander is the president and founder of Design Lab, a digital design agency in Toronto. He started the company 20 years ago when web wasn't a thing yet, and through this experience, he reminded us that the industry is continually changing. Design Lab calls themselves a Green company, they even have a solar-powered office.

Alexander spoke to us a lot about the current mobile market, and brought along some stats:

371k - number of babies born each day
378k - number of iPods sold each day
700k - number of Android device activations each day
562k - number of iOS devices sold each day
200k - number of Nokia devices sold each day
143k - number of Blackberry devices sold each day

TOTAL: 1.45 million devices sold each day

Best Practices in Mobile Design

1. Establish business goals

• Know your audience
• Segment your market
• E.g. Angry Birds: They got people hooked by playing for free first, they sold merchandise and also created advertising revenue. They have had over 700 million downloads.
  

2. Keep it simple

• If something is simple, we'll do it a lot
• "Dont make me think":

Scrollbars and what they can select

Advanced functionality should be easy to find (e.g. shortcuts)


Labels - keep them clear and consistent (nav)

Icons - obvious, not cryptic, need to understand it in one second (e.g. put the word underneath)


Scrolling vs multiple pages - people are happy to scroll

Usability test it - this is the first place clients will try to cut the budget

Assume that the user doesn't actually want to spend time using it

3. Get inspired

• Know what your competitors are up to
• Be on top of new innovations
• Save time and money (e.g. buy the code from a working app)
  

4. Go social

• Invite users to give feedback on their experience using the app
  

5. Remember rankings

• Extremely important
• High-ranked ones are featured - this is free advertising
  

6. Measure

• Design in ways to measure
• E.g. number of downloads or shares
• The things that don't work are just as important - they have to evolve

How to Impress an Agency like Design Lab

1. Good Portfolio - Clear, applicable with what the company wants

2. Have a great attitude - "Your attitude determines your altitude"

3. Research the company and your interviewer

4. Ask lots of questions! - E.g. culture, your role, can I grow here - it shows your interested

5. Don't settle - at Design Lab, the average turnover is 6 years

David Gray - CTV Bell Media

Name: David Gray
Company: CTV Bell Media

David graduated from our program in 2007. After graduating, he started worked at the ad agency Publicist as an Interactive Designer. At the time, they had a small digital team, and he was actually the 3rd person hired as part of their digital department. He pushed out a lot of work creating banner ads, and says that there is still a lot money in banner ads today.

He was laid off during the recession and he turned to freelancing. He still designed banner ads, but also did work as a producer and quality assurance. David says that with freelancing, if you're good, the money is great, though you need to save for the rainy days. He also said you need to stay organized and you'll end up working weird hours.

From there, he got into the media side of thing at as small company called Q Media. The company sold ad space online and he managed all the creative that came through. He ended up leaving 6 - 8 months after starting because the job just wasn't for him.

David now works for CTV Bell Media as a Digital Sales Producer. In this position, he is essentially a project manager, keeping projects organized and delegating tasks. He says that it is his favourite company he's worked for so far, as he has better hours and he has the opportunity to represent the brand he creates for.

Like some previous guest speakers, David described working for ad agencies as working long and hard hours. He further explained that despite the hours, you learn to love it. He also stressed that we not expect too much, too soon, and to work hard to work our way up.

Lastly, David gave us some tidbits of advice about the industry at the moment. He says to learn all we can about mobile, and to realize that nothing is "mobile-friendly", it's either mobile or not. He also says know your browsers as some people are still using IE6. Lastly, he said to stay on top of trends in design, check out the FWA and european websites.

Michael Gramlow - Lollipop

Name: Michael Gramlow
Company: Lollipop

Michael Gramlow is a co-founder and Creative Director at Lollipop. Previously to his work at Lollipop, Michael worked as a Creative Director at Dentsu, Henderson Bas and Organic.

Lollipop is different from other companies because it is not an agency, it is a production company. It mirrors on the broadcast production model that advertising agencies are familiar with, and they work with (are hired by) advertising agencies. Michael says that this model is more prevalent in the US and in Europe where budgets are bigger.

Michael described the workflow as this:

1. Strategy (Agency)
2. Big Idea (Agency)
3. Treatment (Production Company)
4. Shoot / Design (Production Company)
5. Editing / Post-Production / Audio (Production Company)
6. Development (Production Company)

Michael also described for us the three different areas of work in the digital interactive industry.

1. Interactive Pure Play

• Has big budget clients
• Emphasis on user experience
• E.g. Critical Mass

2. "Integrated" Ad Agency

• Creative, brand-oriented
• Short-term projects (part of bigger campaigns)
• Digital is separated
  
• E.g. Taxi

3. Production Company

• Works with agencies
• Production techniques
• An emerging speciality
• E.g. Lollipop

At Lollipop, they have a rep who find work for them. (This rep will charge a finder's fee.) Michael says that all of their work is based out of the US because they have bigger budgets, and they have to work hard to get onto agencies' radars to get into see people. In terms of employees, Lollipop hires a lot of freelancers and their staffing goes up and down depending on how much work they have.

Some of the projects Lollipop has worked on include Black Sunshine Coffee, Sprint, Dickies, TJ Maxx / Marshalls / Home Goods, Sapporo, and Virgin Mobile Unite.

Alison Garnett - Critical Mass

Name: Alison Garnett
Company: Critical Mass

Alison Garnett describes herself as a "Creative Director / Jack-of-all-Trades" at Critical Mass in Toronto. She is a alumnus of our program (graduated in 1994) and before that she attended OCAD for drawing and painting. She stressed that even though she has passion for her work, she absolutely puts her family and personal life first.

She's been working at Critical Mass for 2 years, and before that she worked at a handful of other agencies:

ICE
She worked there before the web; and started teaching herself coding and html.

Freelance
Web Designer

Henderson Bas
Art Director
Had a great client list which included Molson Canadian, Levi's and Nike. She made websites for these clients and got some awards for her work. She said the most important thing in your first job is to try and get work in your book.

SuperCapacity
Owned her own business
The name of the business came from the idea of a large format washing machine that can handle large loads at once. She worked on a lot of identity designs, personal projects, pro bono work and entered a lot of design competitions. She also had some amazing business cards made out of plastic (therefore could be washed!)

Alison is also a prodigious writer and has many blogs, which include:

• Land of Sparkalot
• Vali girls
• Hello
• My Lalaland
  

Taxi
She worked there for 6 years, and only left because it got too easy and comfortable for her. During her time there, she got to with some great clients such as Mini Cooper, Town Shoes, LCBO, Cadillac Fairview, West Jet and Telus.

Critical Mass
Creative Director
When she started at Critical Mass, she wanted to work on a big website (not a microsite) and also wanted the opportunity to work with mobile / iPad development. The first big project she had was for Theodore Alexander, a luxury furniture company. She worked with them to get all 4000 of their pieces re-photographed for the new website. She has also worked on campaigns for Brita USA, Nestle and Sears.

Lastly, Alison spoke to us about how to stand out. She said it's always great to have business cards or some kind of "leave-behind" (e.g. stickers or magnets). She also advised to ask for business cards from other people, and send an email follow-up.

Sonia Janovjak, Gail Leija, Kim Welch, Norma Penner - Sapient Nitro

Names: Kim Welch, Gail Leija, Sonia Janovjak, Norma Penner
Company: SapientNitro

SapientNitro is a multi-national advertising agency, with about 10, 000 employees worldwide. The Toronto office has about 240 employees, and creative team currently consists of 25 people and the IA team about 12. Some of their clients include Ambercrombie, Vail, BMO, Chrysler, Jeep, Dodge, RBC, Harley Davidson, Sportchek and TD.

Sonia Janovjak is a recruiter for designers, information architects and front-end developers.

Kim Welch is a Studio Manger and handles staffing and project planning.

Gail Leija works in Experience Research which includes IA, ethnography and usability testing.

Norma Penner is a graduate of our program and is a Senior Art Director. She talked to us about several campaigns that she has worked on since starting at Sapient.

"The definition of great is entirely defined by the client."

Norma spoke to us about how everything Sapient does in a project is driven by the client and what they need. She said that they describe themselves as the "Meryl Streep" of advertising agencies - they transform what their doing for the "role".

Norma also showed us some samples of her work with Sapient:

1. Jeep Wrangler
A microsite that was to coincide with an international campaign. Because it had to work across many countries and languages, they told the story mainly using pictures and used some new web technologies such as paralaxing to give a feel of depth to the site.

2. Chrysler Grand Voyager
This was another microsite that showed off the vehicle and had to work with an existing television ad. They used the contrast between nostalgia and present day, and it was interesting because the entire campaign was marketed towards men.

3. Abercrombie & Fitch
Norma described how she was brought to the A&F headquarters in the US. She worked with their design team to create an online "Fit Guide" for their jeans and to also create a mobile experience.

4. Vail
This was a project for the snowboarding and skiing community of Vail - to take the visitor's experience and make it better. They created an online experience that to supplement what visitors were already doing, without making them take time out of their vacation. Visitors received badges and rewards just for skiing and professional photographs were taken of people as they went down the slopes. They essentially "gamified" the experience for visitors as the program was available online and through mobile which gave opportunities to share using social media.

Gail spoke to us about how to take a user-centered approach to design. She talked us through the process of implementing a strong research approach to the design to strengthen both the IA and visual design of a project. She used Harley Davidson as an example - they wanted to start targeting women, and Gail created a program to get primary research from real women and create a persona for that woman.

She also stressed that keeping the clients involved with this process is important, because you need them to support and advocate for what you're doing. Especially since this is the part of a project a client would be less willing to pay for.

Lastly, Kim spoke to us about the staffing process as Sapient. Her role is to keep people working on billable projects and schedules who works on what campaign. She is also involved in interviewing and looks for people that can work within a team, has an attitude of giving feedback, is willing to learn and is flexible in their work.

She also promoted Sapient's work culture. She described their environment for learning and that when looking for work, they target Fortune 500 companies, with varying types of work. She also spoke about the opportunity for promotion - you get to pick your own supervisor and direct your own career path. There is no ceiling (no one competes for specific positions) and no one else in Canada does what they do in terms of promoting their staff. She describe the initiation for new staff - Sapient Start - where all new hires across North America are initiated at the same time, in different locations every time.

In terms of hiring, Sapient looks for:

• Forward-thinking design
• Fluency in current digital channels
• Typography (usually the first thing that is looked at)
• Presentation skills (design skills can't stand alone)
• Eagerness (have background knowledge on the company)
• Compassion and drive
  

Name: Jon and Genco Cebecioglu
Company: Studio Vitamin C

Jon and Genco are brothers who own their own design studio, Studio Vitamic C. The name of the studio comes from the initial of their last name, and also for "creativity". They are a small studio of 3 people, though they mentioned they would like to grow their business in 2012. He also talked about how networking is the key to this industry and that since they started their own business, they haven't needed to do any marketing for themselves because of referrals and industry contacts.

During their presentation, they walked us through several of their past and current projects, and how they work through the projects from concept to completion. One such project was Jumping Fish, a software start up company. The showed us their logo design concepts and how they and the client worked together to arrive at the final piece. They also demonstrated the site and showed us how they used a JavaScript plug-in to make a clean and simple elevator site for the client.

As a graduate of our program, Genco stressed the importance of concentrating on our independent projects. He also talked to us about some of our careers options after graduating. Similar to what some other guest speakers have mentioned, he said that working at a small studio, you are more likely to get credit for work and be heard but there aren't many opportunities to move up and the budgets aren't as big. At larger studios, you have the potential for promotion and to work on big brands, but there are long hours and you may be taken advantage of. He also mentioned some of the issues with working freelance include needing to be busy all the time to make it worthwhile, and that there is no security.

Lastly, Genco talked to us about starting our own businesses, as there are many seed investors influencing a huge start up boom in Toronto at the moment. He stressed that this path requires passion and belief in your products, and that seed investors don't necessarily invest in a product, they invest in the person. However, he said that while he loves having his own business, there was no way he could have done it without working in the industry first; learning how it worked and gaining industry contacts were critical to their success.