I’ve worked full-time in creative industries since I left my PhD program[1] in the late 1990s, long before I went to law school. I’ve taught the business-side of being a creative pro, at the university level. Law school added to my quiver of skills and knowledge, but let’s just say that I have an understanding of the professional creative world and the business world. If there is one thing I’d love to impart to all creative pros, it is this: words matter.
Sounds kind of flippant, but it’s not. When you let those whose interests are opposed to yours dictate the language used to discuss those interests, you start from a very weak position. In fact, you may have already lost.
In that context, there are two words that immediately spring to mind that creative professionals must stop using: content and plagiarism.
Let’s start with the latter first: plagiarism is not a synonym for copyright infringement and we must stop using it as such. Plagiarism is a failure to attribute the original creator of something, usually words, cited in something else[2]. For example, if someone writes an article that includes:
Law school added to my quiver of skills and knowledge, but let’s just say that I have an understanding of the professional creative world
without noting that it was a quote of something I wrote, that would be plagiarism but it may or may not be infringement. Plagiarism is a passing off as one’s own work the work of another, and almost exclusively in the academic world, although it can appear in written work like journalism, too. In many ways, plagiarism has a closer connection to publicity rights (and definitely to moral rights, which we do not really have in the USA), since it is about attribution to the original author.
Importantly, if you take and use someone’s work and include an attribution to that person, it is not plagiarism…
…but it may very well be copyright infringement.
When we use plagiarize for infringe, we muddy the waters. A lot. This misuse leads to people thinking that they can use any work for free, just as long as they include a credit line or other form of attribution. It also contributes to the misguided notion that, if a work appears without a copyright notice or attribution, then it’s free to use.
I spend a lot of my time teaching infringers that hard (and, often, expensive) lesson; but what worries me is that the more people see attribution as a free-pass to use, use that is really infringing, the more likely Congress will enact laws reflecting that notion or courts will give it more weight than they ought in fair use analyses.
To protect against that, we must be diligent to use the proper words. For most non-academics, your concern will be about infringement, not plagiarism–call it by its correct term.
Turning to the other word, content, this one could practically drive me to drink.
Heavily.
Early in the morning.
Alone.
Using the word content is a great way to turn any creative work into nothing more than filler–something of no value itself. It also subconsciously makes the holder of the content into someone more important than the creator and even more important than the work itself.
Content reduces the value of your work to practically nothing[3]. Content gets shared (that is, freely displayed and distributed) on platforms[4] that don’t even value it enough to monetize it. Instead, these platforms monetize the data provided by the people who use the platforms. And those platform companies are all valued in the billions of dollars, because of that data they gather and sell.
The heartbreaking reality is that artists have been sold the idea that their content isnt really worth anything but that exposure of their content on these platforms will lead to riches. If your content trends, then some big company will call and offer you a huge contract to make art for it–lucky you! While that is vaguely possible, it is about as likely as winning the Powerball lottery. In other words, it’s business insanity to rely on that minuscule chance.
Sadly, each time you post a work on one of these commercial platforms, for free, for others to “like” or share, the only involved person/entity not making money from the exploitation of your work is…
wait for it…
you.
However, the reality is that what you create is of enormous value and should not be reduced to the notion of being filler (content). It is what draws users to the platforms! If you are offering your creative work on these platforms, free to share on those platforms (if not more broadly), you are giving away too much. Again, the art/photos/words/music you create is what draws users to the platforms and those users are what makes those platforms money! No content means no users means no money for the tech overlords or the advertising businesses that suck off their data teats.
Adding insult to injury is that by freely offering your work on these platforms, you are helping to train the average user of those platforms that your work is of no value. Your photograph, painstakingly created with a crew and lights and years of experience, is of the same value as any users pic of their cat, because you both got paid the same amount to post it on that platform. Same for your writing, same for your music, same for your illustrations. Courts think that way more than you know. AND, if your work is free on platform X, then why should anyone have to pay to post it on platform Q or, for that matter, on their blog or small business website? After all, it is only content and content is free stuff the purpose of which is to get freely shared. Try proving up the value of your work when you’ve been giving it away this way–it’s the stuff to give lawyers nightmares.
To be absolutely clear, no one will ever value your work more than you demand or more than you value it. When have you ever given an estimate to a client for a project and had that client say it will pay you double that amount? Call your work what it is, by its proper name: art, photograph, essay, book, song, composition, illustration, painting, whatever. Don’t let the tech overlords tell you what your work is or what it is worth by controlling the language.
Honor yourself and honor your creative work by using its proper name and insisting others do as well. Also, register your copyrights in your art, don’t give it away, and finally, go after infringers. It is your work, your creation, and you deserve more than just attribution.
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[1]Large parts of my graduate studies were in linguistics, by the way.
[2] See the Merriam-Webster Dictionary definition here: https://www.merriam-webster.com/dictionary/plagiarizing
[3] Worse yet, an artist or author of any stripe calling her/himself a content creator is tantamount to that person saying I make stuff of no real intrinsic or extrinsic value. Do not be that person.
[4] Platform itself means something higher than its surroundings, so the tech companies have taught us to value their works much more than the creative work on them.