By: Sofia Martinez-Guasch
The Internet allows almost any user to tap into the creativity of others. Now, The Lego Group (“Lego”) has expanded that ability by partnering with the crowdsource-creation platform, Tongal, to release Lego’s new Lego World Builder. Artists, writers, and producers can now compete to collaborate with Lego to develop video content for streaming across social media platforms via their own submissions in exchange for a cash prize. While the Platform promotes efficiency its crowdsourced labor market presents some ethical copyright issues.
Typically, creators own the copyright to their own work. However, when a final creative piece results from the contribution of several artists, copyright laws suggest those artists own the work “in common.” Though, when a creator’s work is a “work made for hire” the employer usually retains ownership. Work made for hire is generally either creations made by employees of the employer requesting the work or commissioned works where the creator and the requestor agree to “work for hire” in writing. In the latter, the parties essentially enter an employee-employer type relationship. If the creator is not established as an “employee” however, the creator owns the copyright. Ultimately, copyright issues often come down to whether or not the creator is considered an “employee” – a question that remains unclear with creative users submitting content to Lego World Builder.
Lego’s new platform allows users to build off of each other by creating “stage-based contests” – breaking down the production process for each product or video into different stages. The Tongal based platform, in particular, breaks the process into three stages: (1) an idea contest; (2) a pitch contest; and (3) a production contest. Architects of the platform engage in the first two stages by submitting descriptions, images, and details of “elements” of their storyboard (what Lego calls “Worlds”). Contributors of the platform participate in the last stage by adding content such as text, images, or videos to existing Worlds.
Tongal’s model encourages a larger group of users to participate by expanding the contest beyond the usual video production submissions. The model also allows companies, like Lego, to decide the direction their brand believes the crowd should continue to work. Once Lego has the content they need from the creators of a project, they retain full ownership of that intellectual property. In obtaining the copyright of a creator’s idea or design, Lego has the right to protect–what becomes their work–from improper use. However, when a platform like Lego World Builder promotes wide access to creativity, creative users are swayed by the opportunity to have their ideas recognized without recognizing the legal consequences of submitting, what users believe is, their own creative work.
The crowdsourced nature of Lego World Builder is what would be considered “high-risk” of copyright infringement because of the number of contributions. The platform allows several users to submit their ideas and designs in each stage of the contest, but it also allows users, (fans), to participate solely for the purpose of providing feedback and comments to the submissions. While feedback itself is not considered copyrightable work, the abundance of “reviews” and suggestions could potentially affect how a creator’s ownership in the work is perceived.
For example, Lego may value a fan’s suggestion and recommend the user of the original submission change an aspect or two accordingly. Lego can even directly control the design of the submission. This on-going edit-and-revise process consequently affects the originality of any creator’s work, making it hard to prove originality, or general novelty if a user wanted to bring a misappropriation of property claim.
Additionally, creators whose submissions are rejected by Lego may be subject to unfair transfer of intellectual property rights. This is even despite the Platform’s click-wrap Terms of Service noting that all submissions to the Platform will be owned by Tongal. For example, Architects on the Platform, simply submit the storyboards for the product or entertainment. Under copyright laws, would a storyboard in itself be considered copyrightable work since, alone, if it is not part of a finished work product ready for distribution? This is a question both Architects and Contributors should think before submitting their ideas or content, given that Tongal claims all intellectual property rights of the submissions. Tongal’s ability to lease (or transfer) those rights to a third-party prevents a creator from being able to authorize the use of its own work.
Consequently, the Platform may also be presented with liability issues in the long term if an Architect’s submission, which was rejected, is later used for another product. This may also occur in the submissions themselves via intellectual property contamination–where users may include content in their submissions that are not their own original work. Lego, however, has already recognized these potential issues and has waived its liability to any product or entertainment similar to a user’s submission “whether accepted or rejected from the site.” In doing so, Lego does not require users to prove ownership of the intellectual property rights of their work through copyright registration. This is considered a strategic decision to motivate more participants to create submissions but also raises ethical issues, especially to those who are not rewarded for their time and effort but still contribute to the cost-effectiveness of Lego’s Platform.
Ultimately, crowdsourcing has been known as an efficient source of producing creative content for product or entertainment purposes. What artists and users of crowdsourcing platforms need to recognize, however, is that a platform’s primary purpose is to commercialize the creative content in a way that is cost-effective. While brands such as Lego use crowdsourcing as a means of supporting the creative industry, creators themselves need to question whether their talents are actually being supported. If crowdsourcing design work for ads is the future for artists, copyright laws should take these ethical issues into account. Can platforms, like Lego World Builder, sustain their efficiency while also supporting the careers of designers? Right now, this seems unlikely and artists should think twice before making submissions.
Student Bio: Sofia Martinez-Guasch is a second-year law student at Suffolk University Law School and serves as a Staff Member on the Journal of High Technology Law. Sofia holds a Bachelor of Arts in English from Northeastern University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
