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This presentation, and these slides, are subject to a Creative Commons CC-BY-NC-SA license.

Nothing in this panel is legal advice, nor does this panel create an attorney-client relationship.

Disclaimer Time

• THE CONTENT IN THIS PANEL IS NOT LEGAL ADVICE. I am a lawyer, but I am not your lawyer. If you have specific legal questions, please talk to a lawyer licensed to practice in your jurisdiction.
• This panel is not comprehensive. We have limited time, and law varies significantly on a state-by-state basis.
• This panel is current to the best of my knowledge as of October 2025. However, the law is constantly changing, especially in some of the areas we will cover, such as intellectual property.
• All opinions (and errors) are mine alone and do not reflect the views of my employer.

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About The Presenter

• Lawyer (not your lawyer) for 10+ years
• Practice areas: Contracts, administrative law, government compliance, civil rights, labor and employment, appellate litigation
• Illustrator for 20+ years
• Offkai Expo 2024, various publications and fan events
• Panelist at numerous cons
• Anime Expo, Sakura-Con, Kumori-Con, Anime Weekend Atlanta, etc.
• VTubers, Symphogear, DDLC

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What will you learn in this panel?

• General information about legal concepts relevant to creators (e.g. copyright, contracts)
• NOT legal advice!
• Common legal misconceptions
• When and how to get a lawyer (and what to discuss with them)
• Questions will be taken at the end

Copyright

• What is it?
• How do I get one?
• What is a DMCA notice?
• What’s this “fair use” thing?
• If I commission an artwork, who owns the copyright?
• What is a copyright license?
• What is “public domain”?
• What happens if someone doesn’t enforce copyright?
• What about AI?

The DAICON IV opening animation (1983) may contain the most copyright violations of any 6-minute video in history!

Copyright—What Is It?

Exclusive right to do the following (17 U.S.C. 106):

• Copy the work
• Prepare derivative works of the work (sequels, fanfics, etc.)
• Sell, rent, etc. copies of the work
• Publicly perform, display, or play the work

TIP:

Copyright does not include the right to be attributed.

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Plagiarism, while unethical, is not copyright infringement (although the copying itself might be.)

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Sourcing is not a defense to copyright infringement!

Copyright—How To Get One?

Requirements for copyright (17 U.S.C. 102):

• Original expression
• Facts are not protected, such as maps or phone books. [1]
• Abstract ideas and concepts are not protected.
• Single words and short phrases are generally not copyrightable.
• Work of (human!) authorship
• Animal[2] and AI[3]-produced works are not eligible for copyright!
• Fixation in a tangible form
• NOT registration—copyright is automatic once these requirements are met!

TIP:

More than one copyright may apply to a work. For example, the composition of a song, the lyrics of the song, a recording of the song, and a music video of the song are all separately copyrightable.

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Keep this in mind when getting permissions!

Copyright—How To Get One

• Why register?
• Required before bringing a copyright infringement lawsuit
• Allows for statutory damages (17 U.S.C. 504(c)):
• No need to prove actual harm
• Range of $200 (for innocent infringement) to $150,000 (for willful infringement) per violation
• While uncommon, people have been found liable for $675,000 judgments for filesharing music. [4]
• How to register?
• https://www.copyright.gov/registration/
• Fees range from $45 to $500, depending on type
• Groups of works can be registered together

Copyright—Enforcement

• Civil remedies (damages, injunction, etc)
• Criminal – where infringement is both willful and “for purposes of commercial advantage or private financial gain.” 17 U.S.C. 506(a).
• Digital Millennium Copyright Act (DMCA) notification procedure (17 U.S.C. 512):
• (1) Copyright owner (or authorized agent) submits takedown notice to website. Website must promptly remove + notify.
• This is a condition of DMCA safe harbor—website must comply with DMCA takedown notices or it could itself be liable for its users’ © infringement
• (2) Uploader may submit counter-notice
• By submitting counter-notice, you consent to be sued in your local federal court!
• (3) Website must restore the content within 10-14 days unless original DMCA notice sender sues the uploader.

Copyright—Fair Use

4-factor balancing test:

• 1. Purpose & character: is it transformative—does it change the original to add a new meaning or message?)
• Parody, comment, criticism, education
• 2. Nature of underlying work: fact or fiction?
• 3. Amount and substantiality: did the infringing work take more than necessary / did the copying go to the “heart” of the work?
• 4. Market harm: could the infringing work substitute for the original, decreasing its sales?

No one factor is determinative. Fair use is HIGHLY fact-dependent, so consult with a lawyer!

Copyright—Fair Use

Purpose & character: Parody seeks to comment on or critique earlier work, which is transformative and a “social benefit.” [5]

Market harm: Parody doesn’t substitute for original work. Although criticism could harm demand for the original, this “does not produce a harm cognizable under the Copyright Act.” [5]

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HOLDING: Fair use. [6]

Copyright—Fair Use

Purpose & character: Google Image Search “transforms” pictures into thumbnails (identifiers for websites.) New work, socially beneficial. [7] Transformative.

Market harm: Thumbnails don’t substitute for full-size images. [7]

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HOLDING: Fair use.

Copyright—Fair Use

• Is fan work fair use? Maybe.
• Harry Potter fan-made reference book was found to be transformative, but took too much from the original books to qualify as fair use. [8]
• Many IP holders (Cover, Team Shanghai Alice, Cygames, etc.) publish fan work guidelines—consider using these to manage risk
• For example, Cover (Hololive)’s fan work policy prohibits defamatory, commercial, etc. uses

Copyright—Works for Hire

When paying for a work to be created, copyright generally does not transfer to the payor UNLESS:

• Explicitly agreed to by contract, or:
• The artist was an employee of the payor:
• Did the payor control the manner and means of doing the work? (Tools, workspace, hours, additional work, etc.) [9]
• Was this a one-off commission, or part of the artist’s regular job?

Shirobako’s Yasuhara Ema is an employee of Musashino Animation, meaning any copyrightable subject matter she produces as part of her work presumptively belongs to Musashino.

Copyright – Licensing

• Transfer = giving over the copyright, licensing = allowing someone to perform some or all of the exclusive rights involved in copyright
• Online reproduction, display or exhibition at an event or on streaming, printing rights, merch rights, derivative works, etc.
• May be exclusive (only the licensee can use the IP) or non-exclusive
• May be worldwide or in particular areas
• May be perpetual or for a limited time

Per its licensing agreement with Tatsunoko, Harmony Gold has rights to use the Macross IP everywhere except Japan.

Copyright—Licensing

• Covers are subject to a compulsory (mechanical) license: you can always make a cover as long as you pay the statutory license fee (9.1 cents / download OR song on physical album.) 17 U.S.C. 115.
• EXCEPTION: Audio streaming platforms (Spotify, etc.) cover royalties on the user’s behalf under the Mechanical Licensing Collective. This does not apply to audio-video platforms like YouTube, as these need a separate “synchronization” license.
• Large copyright collectives (BMI, ASCAP, SESAC, etc.) may sell blanket licenses for their whole catalog to radio stations, restaurants, etc.

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Copyright—Public Domain

• Copyright generally lasts either:
• The life of the author + 70 years, or
• For works for hire or anonymous / pseudonymous works, 95 years from publication or 120 years from creation—whichever is earlier. (17 U.S.C. 302)
• Works created before 1978 use different rules. (17 U.S.C. 303)
• After this time, a work goes into the public domain and is free for anyone to use.
• IMPORTANT: Even though a character may be in the public domain, newer works starring them may still be under copyright (e.g. Sherlock Holmes.) [10]
• Works may also be voluntarily released into the public domain.

Mickey Mouse (Steamboat Willie), who entered the public domain in 2024.

Copyright—Abandonment

• MYTH: Copyright owners are required to take action against infringers, or lose their copyright.

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• REALITY: “It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement.” [11]
• Copyright can be abandoned, but it requires intent AND an overt act to surrender the copyright—inaction alone is not enough. [12]
• Trademark, as opposed to copyright, may require the rightsholder to police use of their mark.

Copyright—What About AI?

• Wholly AI-produced works are not eligible for copyright. [3]
• Do AI-produced works infringe on the material on which they were trained? Possibly.
• A recent court decision held that AI training on books was fair use. But, pirating books to train AI on was copyright infringement. [13]
• A lawsuit is in progress now about whether an AI company can be liable for enabling copyright infringement of song lyrics. [14]
• The law in this area is developing fast—this slide will probably be outdated a year from now!

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Copyright – Quiz

• Q: You are starting a food truck with your friend. Your friend wants to use a picture of Tsunomaki Watame from Hololive to advertise the truck. When you ask your friend if they have permission to use the picture, they say they downloaded it from the Internet, meaning it is public domain. Is your friend correct?

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• A: No. Copyrighted works do not become public domain merely by being made available online. A copyright is not abandoned unless the owner intends to surrender the copyright and takes overt action to do so. Cover’s fan work policy also prohibits commercial use of their IP.

Contracts

• How do I form a contract?
• What happens if something isn’t in the contract?
• What are some common contract terms?
• What’s an arbitration clause?
• What’s a NDA? What’s a non-compete agreement?

Contracts—Formation

• Offer and acceptance (meeting of the minds): did both parties intend to form a binding legal relationship?
• “Clickwrap” agreements are generally enforceable, though it depends on the facts. [15]
• Definite terms: Subject matter, parties, etc. must be defined clearly enough to know if there’s been a breach or not
• Consideration: Was value exchanged? (Money, promises, etc.)
• Competency: do both parties have capacity to contract? (not a minor, not impaired or insane, authorized to speak for their employer, etc.)
• Legality: Cannot contract to do something illegal
• “Severability” clauses allow the legal parts of the contract to continue in force and effect

TIP:

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Contracts do not necessarily need to be in writing, unless the Statute of Frauds applies (e.g. the contract is intended to run longer than 1 year.)

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Oral contracts do tend to be harder to prove for obvious reasons.

Contracts—Terms Not In Contract

• Generally, courts will not read language into contracts that was not intended by the parties.
• Most contracts contain language (merger clause) stating that nothing outside the contract is binding.
• E.g. “This Agreement constitutes the entire Agreement between the parties.”
• That email that they’ll totally do X? If not in the contract, it didn’t happen
• Exception: Courts may consider contextual evidence about the parties’ relationship to help interpret the contract. However, specific context rules vary widely state-by-state.

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Contracts—Scope of Work

• Contracts should be specific about what work is or is not included—especially for hourly or piecework payment models
• Contracts may have a specific changes / approval process
• What kind of changes to the work can be requested? Will changes add time/money to the contract?
• If contract requires additional documents (e.g. report, sketch, certain legally required contract provisions,) contract will usually incorporate the document by reference and state that the parties’ agreement includes all documents together

Contracts—Payment

• Many models exist: fixed price, milestones, hourly/daily rate, percentage, reimbursables, per-click, cost plus, etc.
• For variable pay structures (hourly, percentage, etc.), the contract may include a minimum and/or maximum
• If a contractual maximum is used, the contract may have a requirement to provide notice before doing work that would hit the cap. This provides opportunity to amend the contract.
• Commercial use, IP transfer typically increase the price
• Contracts typically do not allow payment for work done before the contract became effective.
• But note recovery may still be possible under “quasi-contract”

Contracts—Timing

• Contracts should be specific about what must be delivered by when
• E.g. if commissioning art for something time-sensitive like an event, set a specific delivery date – preferably with float
• Contract deadlines can be changed later by amending the contract, or contract may include extension of time provisions from the start
• E.g. a house painting contract may allow the deadline to be pushed back for bad weather
• Invoices: When/how often submitted? How much time to pay?

Contracts—Disputes

• Agree on a dispute resolution process BEFORE it’s needed
• Alternate dispute resolution
• Arbitration: Parties hire an arbitrator to hold a quasi-trial. Arbitrator’s decision is binding and almost always final.
• Can have cost savings over going to trial (but arb fees can be high)
• Arbitration clauses are everywhere. Usually enforced, but exceptions exist [16]
• Mediation: Parties hire a neutral third party to help the parties come to a negotiated settlement.
• Not binding—mediator can’t order parties to agree to anything
• Venue/choice of law: Where will any lawsuit be brought? What laws will apply?

Contracts—NDAs and noncompetes

• Non-disclosure agreements are a type of contract where a party agrees not to disclose certain types of information.
• Non-compete agreements involve an agreement not to work in a certain field in a certain geographic area for a certain time.
• Enforceability varies by jurisdiction (e.g. California does not recognize most non-competes.) [17]
• General contract defenses (unconscionability, voidness against public policy, etc) may apply—check with a local attorney
• Rule against illegal contracts still applies: NDAs cannot override statutory whistleblower protections!

Contracts—Quiz

• Q: You and your friend are drinking and complaining about your boss. Your friend, completely plastered, says they will kill your boss for you. Is this an enforceable contract?

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• A: No. Your friend was drunk (no capacity to contract,) you did not promise anything to your friend in return (no consideration,) and murder is illegal. [18]

When do I need a lawyer?

• Pursuing or defending litigation
• Drafting / reviewing contracts
• Incorporating & other regulatory filings
• Decisions that involve significant risk or potential liability
• The other party has a lawyer
• Whenever you would be more comfortable with one

OK, so I need a lawyer…

• DO NOT RELY ON THE OTHER SIDE’S LAWYER. They have no duty to represent your interests.
• State bar referral service
• Pro bono clinics run by law schools / local bar associations may be an option if your income is low enough to qualify
• Note these clinics mostly specialize in doing family law and landlord-tenant law
• Consider e.g. Volunteer Lawyers for the Arts
• If you’ve used a lawyer before, ask if they know any lawyers in the relevant specialty

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OK, so I need a lawyer…

How much will this cost?

• Some lawyers may charge a fee for consultation
• Compensation for time + conflict checks
• Attorney rates vary widely based on experience / specialty / location—expect to pay $250 - 1000+ / hr
• Depending on the type of case, some lawyers may take cases on contingency (% of recovery, if any) or with expectation of recovering attorney fees from the other side
• Clients have right to review attorney billings

OK, so I need a lawyer…

Wait! Can’t I just use AI?

Q&A Time

REMEMBER, THIS PANEL IS NOT LEGAL ADVICE.

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PLEASE KEEP YOUR QUESTIONS GENERAL.

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GOOD QUESTION: “What is a LLC and why do people have them?”

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BAD QUESTION: “My parents are kicking me out of their basement because I torrented too much anime and got the Internet canceled. Is this a First Amendment violation?”

Credits & Sources

Assets: sozaino.site Artwork: Myself (@maullarmaullar on most social media)

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References/Notes:

[1] Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)

[2] Naruto v. Slater, No. 16-15469 (9th Cir. 2018)

[3] U.S. Copyright Office Review Board, Decision Affirming Refusal of Registration of a Recent Entrance to Paradise (Feb. 14, 2022)

[4] Sony BMG v. Tenenbaum, 660 F.3d 487 (1st Cir. 2011)

[5] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)

[6] “Verdict: Fair Use” would sound better here, but is not accurate. A ‘verdict’ is a decision reached by a jury. Appellate courts, like the Supreme Court, make ‘holdings’ of law.

[7] Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)

[8] Warner Bros. Entertainment Inc. v. RDR Books, 575 F.Supp.2d 513 (S.D.N.Y. 2008)

[9] Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)

[10] Klinger v. Conan Doyle Estate, 755 F.3d 496 (7th Cir. 2014)

[11] Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014)

[12] Schatt v. Curtis Mgmt. Grp., Inc., 764 F.Supp. 902 (S.D.N.Y. 1991)

[13] Bartz et al. v. Anthropic PBC, No. C 24-05417 WHA (N.D. Cal. 2025)

[14] Concord Music Grp., Inc. v. Anthropic PBC, No. 24-cv-03811-EKL (N.D. Cal. 2025)

[15] Berman v. Freedom Fin. Network, 30 F.4th 849 (9th Cir. 2022).

[16] Comb v. Paypal, Inc., 218 F.Supp.2d 1165 (N.D. Cal. 2002)

[17] Cal. Business and Professions Code 16600.5

[18] Code of Hammurabi

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