Kids’ Digital Creations: Who Owns The Content?

wipo-color.jpgI find it ironic that the WIPO, (World Intellectual Property Organization) wants to educate tweens aged 9-14 about copyright (see 72-page workbook pdf file here) when childrens’ rights are usurped regularly in the digital sphere via user-generated content without shared authorship, credit, or kudos.

Shouldn’t kids have the same creative rights/attributions as adults?

I sure think so! Most kids’ sites, promos, contests, and participatory media have children ‘sign their life away,’ for the ‘honor’ of having their creation used…

There are notable exceptions like Teen Second Life, which grants players full copyright over their avatars and other in-game creations, and Izzy Neis’ former hub, StarFarm Productions, which gives kids’ full credit for their story ideas, designs, & other creative submissions bridging the world of television and user generated content, but for the most part, let’s face it…kids are hosed.

How is this UGC policy deemed normative or fair? Why are kids treated as second-class citizens just because they’re minors? Should big bucks corporations profit/exploit freebie talent & pay ‘em off with the prize of media ‘exposure’ sans credit or affiliation?

In the ad agency world, we used to call this “spec work,” (as in ‘speculation’) which was commonly frowned upon as the lowest common denominator desperation act to have corporations receive a gazillion free ideas in the hopes of being awarded the account.

Voluntary groveling, if you will…

I’d argue this is ‘spec work’ in the kids’ content arena…what say you, readers?

nameplate.gifWhen I opened Copy/Concepts way back in 1984, my first credo was, “no spec work” as an indie, because to me, it devalued my seniority, creativity, and brand.

Personally, I never bought off on the ego-play of advertising as a glamorama biz, to me it was ‘just biz’ pure and simple, and paid a few more dollars than journalism.

Guess that’s why I opened my own shop at age 23 & billed back as a ‘hired gun indie’ instead of buying off on the ‘work for peanuts as a junior staffer to become a famous CLIO award toting creative’ theory. (Plus, I could dodge icky accounts & cherry-pick brands that seemed like a good fit!)

“Brain for hire” was my gig, and it made sense for everyone…still does…

Clients (and agencies) were able to receive senior level seasoned talent at indie rates, and take the credit if they wished, I was able to eke out a living doing creative branding in the writing/production realm that didn’t compromise my ethical compass.

Let go of the ego, but give back SOMEthing!

So why should kids be any different when it comes to this level of pragmatics?

I’ve told every single one of our Shaping Youth teen advisors that ANY name generation, product idea, podcast, blog, video or even a suggestion is THEIR work under the Creative Commons attribution/protection.

If children are innovative and erudite, (clearly it doesn’t matter WHAT age they are) fergoshsakes, reward them with their due credit!

That was my theory when I started writing professionally as a teen…Still holds today.

It doesn’t matter if you’re a kid or not…business interests truly don’t even need to KNOW your age. (don’t ask, don’t tell…especially on the internet) They can (& often do) hold it against you!

Candidly, I used to purposely ‘bluff’ who I was, using ‘sins of ommission’…

When I was under 21, handling $11 million accounts, (um, always ‘old for my age’…) I couldn’t ‘go out for drinks with the clients’ because I was in all actuality, under legal age! Go figure. I never lied, I just ‘never mentioned’ my age; I had the chops for it, so who cares?

Knowledge is power, yes?

It’s the CONTENT that matters. Is there value or not? Quality, or not?

If so, acknowledge it…if not, move on. Very simple stuff.

I say kudos to Second Life/fair use, as well as to StarFarm’s licensing rights w/Edgar & Ellen, and new entries like GoPets.com that Sara singled out in her guest editorial to follow…

gopets-logo.jpgGoPets is a new virtual world that has a VERY viable venue in my estimation if they play their cards right. It makes good sense to me to bring in thought leaders at the onset to help shape the vision to be a win-win for all…they’re smart, and it shows.

In fact, I think I’ll feature them soon, as I’m trying to hook them up with another cohort recently passed along to me via my NextNow thinktank crew, called “Animal WOW.”

Animal WOW was just profiled in the L.A. Times for trying to instill positive values/teach kids responsibility with a portion of the proceeds designated for the American Humane Association.

animalwow_128-105.jpgSay…Hmn…What if GoPets’ virtual world teamed with Animal WOW for a social media digital hub for do-gooders that love animals? I’d sure invest in building that rev gen platform!

Ok, just a thought…ping me, gang, if you’d like a fellow animal aficionado onboard! As usual, I digress…(sorry, it’s the serial entrepreneur shining through…;-)

Without further ado, here’s our newest Shaping Youth correspondent, Sara M. Grimes, who wrote this insightful piece for one of our other correspondents, Ashley, Children’s Media Consultant, who covers the kids’ TV beat. (small world, yes?)

Shaping Youth is proud to welcome Sara M. Grimes, a PhD candidate with the School of Communication at Simon Fraser University and author of the blog Gamine Expedition with her first post here of many to follow…

Sara’s research explores children’s digital culture, ethical and legal implications of marketing to kids, and UGC pertaining to web/TV media mashups. Enjoy! –Amy

sgrimes1.JPGShaping Youth Correspondent Sara M. Grimes:

“While the industry buzz continues to build around the various business opportunities presented by web 2.0, intellectual property issues remain a persistent–and as yet unresolved–concern.

In response, a number of industry standards are emerging, many of which offer a very corporate-friendly template for dealing with users’ potential intellectual property (IP) and authorship rights over their submitted content.

In fact, many sites continue to claim full copyright over user submissions and postings in their terms of use agreements and end user license agreements … despite the growing role and prominence of user-generated content (UGC) online.

Not everyone has followed this trend — a small number of alternatives have also surfaced, taking a much more collaborative stance towards copyright, and recognizing the user’s dual role as “co-author.” High profile examples include Linden Lab’s “Second Life,” which grants players full copyright over their avatars and other in-game creations, as well as GoPets’ “Avatar Bill of Rights,” which will similarly ensure that players are given property rights.

This past August, in addition to becoming one of a handful of properties to connect UGC with traditional (television) media content, Star Farm/Bardel Entertainment’s “Edgar & Ellen” became one of the first children’s properties to give kids’ full credit for their story ideas, designs, and other creative submissions.

edgar and ellenStar Farm’s decision to acknowledge authorship of its child contributors is significant for a number of reasons. As Ashley (Shaping Youth correspondent for kids’ TV) has already described in her post “User Generated Content Hits Kid’s TV,” providing kids with opportunities to create their own content raises a very special set of issues, which include privacy and security concerns, as well as questions of children’s media literacy. But these practices also introduce new questions of authorship and copyright that most children’s media professionals haven’t really had to deal with until now:

Should kids be given the same authorship and IP rights over their creations as adults? To what extent should user manipulations of corporately-copyrighted images and themes be considered “original content”? What would co-authorship with children look like, and what is the role of the parent(s)? Can a minor–or their parent for that matter–really legally transfer copyright or intellectual property ownership over to a website?

These questions are complicated by the ambiguity surrounding kids’ (and many adults’) ability to understand complex legal and economic processes, as well as existing laws around minors’ contracts and kids’ special legal status as vulnerable members of society. Kids aren’t always able to grasp the intricacies of things like “privacy” and “transfer of ownership”, and often understand these concepts quite differently than adults do.

When it comes to abstract terms like “intellectual property”, not only are kids not used to thinking about their own creations in these terms, but they’re often unable to gage the ramifications of agreeing to sweeping contracts that claim copyright over (to use the same words that commonly appear in TOS agreements found on kids’ sites) “any and all submissions,” “forever,” and “throughout the universe”.

Kids are at a distinct disadvantage when it comes to business transactions with adults, and this is part of the reason why the vast majority of contracts with minors are voidable and unenforceable in North America. And while sites might try to bypass this by enlisting the parent as the agreeing party instead of the kids that actually use and contribute to the sites (a loophole that many experts believe is unlikely to stand up in court), copyright claims over kids’ content–with or without a terms of service that says so–are on pretty shaky ground.

As in the adult world, however, most of these issues have not been formally resolved, and since a kids’ site has yet to be challenged on these terms, it might be awhile before these questions are answered. In the meantime, unfortunately, a number of sites are setting their own standards, constructing a “default position” that claims the fullest possible rights over kids’ submissions.

Which brings us back to “Edgar & Ellen” and Star Farm’s announcement that kids that submit content to its site will get full “credit” for their contributions – even those that are eventually used on the TV show. Although the site still claims full copyright over kids’ submissions–leading me to believe that this particular “default position” is not going to change without some serious public intervention–it also constructs a very clear statement about UGC and child-creators.

Children are called “independent contractors,” and their submissions are labeled “Works for hire.” The terms of service contract is very careful to explain the process of transfer of IP ownership that the site is attempting to enact, using child-friendly language and advising kids to talk to their parents about it.

While I disagree with the site’s sweeping IP claims, I applaud its legitimization and validation of kids’ budding role as producers of media content. Although I think it’s unlikely that kids are reading the TOS contract, or that they fully understand the dubiousness of some of the terms they’ve supposedly agreed to, it’s nonetheless a good first step towards giving UGC-creating kids the recognition they deserve.

The next step is to find a site or game that dares go the extra mile by enabling kids to both discover and retain their emerging rights as cultural producers. This approach would not only be closer in line with children’s existing special legal status (which, after all, is there to protect them from being exploited by more powerful and knowledgeable adults), but would also do a lot to promote kids’ emerging rights in the digital environment.

If the purpose of integrating UGC into children’s media is really to include kids’ voices in the creation of their shared culture, then it is up to the sites and companies that profit from this inclusion to ensure that kids’ rights aren’t excluded in the process.

What do you think? Should kids be given the same authorship and intellectual property rights over their creations as adults?”

–Sara M. Grimes, Shaping Youth Correspondent, PhD candidate, SFU, author of Gamine Expedition

Related Resources:

The Patry Copyright Blog: WIPO & Children

Copyright Alliance: Lesson Plans Grade 3-8

ArsTechnica: Reviled Broadcast Treaty Dies at WIPO

The Patry Copyright Blog: Nonprofit, Nonpartisan Education in Copyright

The Patry Copyright Blog: Copyright is Always Government Intervention

AJ/Editor’s Note: Blogger William Patry is Senior Copyright Counsel, Google Inc.

Formerly copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, formerly Policy Planning Advisor to the Register of Copyrights, formerly Law Professor, Benjamin N. Cardozo School of Law; author of numerous treatises and articles (including one on fair use with Judge Richard Posner), including the new 7 volume treatise on “Patry on Copyright”. fyi: Disclaimer: His blog represents his own views, not those of Google, Inc!

Interesting though, yes? 😉 –a.

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Comments

  1. While I agree with you in theory, it’s a little more difficult in practice. The balance between privacy(P)& (S)safety and copyright is heavily weighted to the privacy. And trends seem to be weighing the P&S even greater. The reaction from a company is to be as protective as we can, which we should be, and limit our exposure to as much fallout as possible. Let’s face it, copyright issues tend have limited financial exposure on individual cases while P&S has a kind of open ended liability. What happens if a minor is hurt because a connection made through our site?

    So, when a company elects to go down the route of not collecting personal information to ensure that it cannot be connected with the online visitor it makes the credit assignment issue a difficult one.

    Thank you for the discussion. It is a very valid topic.

  2. Thanks, Robert, you’re absolutely right. I hadn’t seen the P&S side tied so closely to the ‘giving credit’ portion, but that makes sense, of course.

    You’re also correct that P&S is HUGE esp. where kids are concerned, as evidenced in the Facebook feud over beacon, etc. and so yes, I completely see how private companies need to protect themselves from a liability standpoint.

    Still, I really like the way they’re hashing through this on the GoPets site that Sara mentioned as evidenced by the legal threads and discourse on the “Avatar Bill of Rights” (see link above)

    It’s very sanguine advice with solid back & forth from legal beagles AND content creators…As a new site in the works you
    may want to check it out for sure.

    He even offered a ‘bounty’ to secure good advice (Smart $ well spent no doubt, based on what lawyers rack up hourly at a high burn through rate for just one specialists’ opinion rather than a bevy of dialog!) Check this out: http://erikbethke.livejournal.com/18138.html

    And good luck with your “Konstruction Zone” playtime site. Keep me posted on your progress and what it will offer, ‘k? Especially the privacy/safety angle…important stuff, as you rightly say.

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