Sex, Copyright, and Consent
Intimacy and intellectual property are about relationships.
Before I was a lawyer, I was a sex educator teaching young adults about outercourse, orgasms, and violence prevention. I know a lot about human sexuality and a lot about intellectual property, and here’s what I know for sure:
Sex and intellectual property are about relationships.
Two or more humans connecting about anything creates an interpersonal relationship. Acknowledging the existence of a relationship between you and your partner(s)—no matter how brief or anonymous—is imperative. It’s tempting to ignore this truth when we’re uncomfortable, but pretending you’re not in a relationship won’t help. Here’s the good news: you can create a great relationship with anyone. It’s actually very easy, and principles from your personal experience can apply to your business relationships.
All great relationships—personal or professional—are based on trust, clarity, and respect. Great relationships don’t have to last a long time, but it can be helpful to assume that any connection is about this situation and the next one, too. Successful creatives have repeat clients and collaborators. People who are “good in bed” tend to have sex with the same person more than once. In bed or in business, people come back when they like something about the experience.
How will you know your partner is having a good experience? They’ll tell you.
Obviously Enthusiastic Partners
In my classes, I asked 19-year-olds this question: “Don’t you want to have sex with an obviously enthusiastic partner?”
They always looked at each other, then at me, then at each other, and then someone would say, “Well, you know, sometimes it’s hard to tell.”
I always replied, “Don’t you know what obvious means?”
Inevitably, someone would then ask about wordless consent. “Well, I mean, if you get started, and it seems like everything is going well…what then?”
My answer: “Silence is a bad sign. If your partner gets quiet, you pause. You ask if they’re OK. You ask if they’re still into it. You need to check in before proceeding.”
This would bring us to awkwardness. “I mean, it’s just so awkward to ask. What if it ruins the mood?”
I’d say: “Sorry, let me be sure I heard you. You’re worried that a half-naked person is going to lose interest because you inquired about their well-being?”
The gaggle of 19-year-olds would collectively titter, snort, and sigh with relief. Of course, because they know what “obvious” means.
If your partner isn’t obviously enthusiastic, they’re probably having a bad time.
A Bad Time
Last week, I had a bad time.
A former collaborator—we’ll call them my “ex”—used my name and intellectual property without my permission. They repurposed our private text messages for a podcast script and framed my participation as voluntary. They also implied my endorsement by crediting me in the episode and on social media.
I was incensed.
The right to make your creative work public—or not—is one of the six exclusive rights afforded by copyright. This right is known as “publication.” You should never make a collaborator’s private material public without permission. Fundamentally, publication is the right to share or not to share. My ex violated my publication right by sharing my words publicly without my consent.
We had, in fact, discussed a collaboration. However, when it became apparent that our values were not aligned, I stopped replying to my ex’s requests for participation. Should I have clearly declined? That’s what I would advise a client to do. Yet, clients rarely seek my advice when their clearly stated needs are blatantly ignored. Usually, clients in my position didn’t feel like having “The Conversation.” Like everyone else, I am occasionally averse to conflict. I didn’t feel like inviting drama, and I didn’t feel like having another effortful DTR talk with a partner who has never listened well.
Technically, I didn’t owe my ex an answer. Legally, you don’t have to respond to a request when you don’t want to appear on someone’s podcast, license your song for a remix, or donate your artwork to a charity auction. Legally, your collaborator can’t pull a painting out of your studio and put it on the block. They must satisfy fair use requirements to put your song in that remix. Performing someone else’s words on your podcast is a fuzzy area that requires emotional and intellectual dexterity.
I assumed my lack of enthusiasm would send a clear message to my ex—“I’m not interested.”
Instead, they took my silence as consent.
Consent Culture
In a consent culture, silence is never taken as consent. Consent culture is not limited to sexual interactions; it also applies to everyday interactions. Some examples of consent culture include:
Respecting others’ boundaries
Openly communicating with your partner
Asking before giving a hug
Being sober when giving consent
Making sure consent is voluntary, enthusiastic, and non-coerced
Being able to change your mind, even if you said yes earlier
Copyright is a consent culture. Legally, you have to ask permission to use another’s creative work. Some pejoratively refer to this as a “permissions culture” because asking is so annoying, so economically inefficient, so old-fashioned. Yet, consent is a feature of the legal system, not a bug. The consent requirement in copyright allows musicians to tell Trump he can’t play their music at his rallies. It enables artists to say no to AI scraping. It empowers you to tell Target it can’t copy a holiday ornament you designed. The consent requirement allows you to say all this by saying nothing at all. Unless you say yes, you’ve effectively said no.
⚡ Pro Tip: If you ask and don’t get a reply, the default answer under copyright and property laws is always “NO.”
As a sex educator, I taught students that it’s not hard to tell when someone wants to have sex with you—if you bother to ask. Likewise, it’s not hard to tell when someone wants to write a song with you, provide photo references for your paintings, or produce a tarot deck with you. You’ll know because they’ll say yes or enthusiastically participate.
Of course, some collaborators will try to pressure you into saying yes while you mean no. We have words for that in the law—duress and coercion. When making an agreement, duress or coercion includes feeling pressured to sign, not having time to review the contract, or being psychologically manipulated. Manipulation might include direct threats, economic pressure, misrepresenting or withholding material information, or including impossible terms.
This is where your personal experience can inform your business relationships. You probably know what it feels like to be pressured into doing something you don’t want to do. Coercion didn’t feel good at that nightclub and won’t feel any better in a boardroom. Don’t sleep with or collaborate with anyone who tries to manipulate you.
It never ends well.
Moving On
Last week, I didn’t follow my own advice and found myself in a situation that left me feeling violated and angry. I knew my anger was valid because I know copyright law and because I’ve made similar mistakes. When I breached boundaries, my brave, generous collaborators spoke up and gave me opportunities to repair the damage I caused.
Clients often hear me say, “Our primary goal is the preservation of your relationship.” Yet, I offer many options when my clients’ boundaries are violated. I help them repair ruptured relationships and set better boundaries for future engagements. I also help them burn bridges, stock the moat with alligators, construct dense legal fortresses around their creative works — and leave a secure door unlocked for worthier partners to enter. I design whatever the client needs to feel safe after a bad time so she can feel confident collaborating next time.
One piece of advice remains constant in every situation. I tell every client who feels violated: “You had a bad time, but don’t let the story end there. Write about it. Paint about it. Teach about it. Feel no shame, for you did nothing wrong. Take this awful feeling and make something from it.”
This time, I took my own advice.
Thanks for reading.
Question + Answer
I always left time for a robust Q&A at the end of a sex education class. Here are a few prompts to get you thinking about creative work and consent.
Is using my friend’s text messages always a copyright violation? How will I know?!?!?
NOT ALWAYS. ASK.
Some texts are not original enough to merit copyright protection. Originality is a very low bar, so you’re always better off asking permission first. You’re also tangling with privacy laws, which vary by state but consistently protect personal and sensitive content. Most importantly, incorporating a friend’s texts, emails, writings, artwork, or photos into your work without their permission is callous and rude.
Expect some fallout.
Can I feature my friend’s work, credit them appropriately, and direct my audience to their feed or site?
PROBABLY.
Yet, imagine this scenario. You’re an alt-right essayist with a popular website. Your site offers misogynistic social commentary and praises extremist political candidates, and you have thousands of devoted followers. I can’t imagine why any feminist artist would be your friend, but stranger things have happened.
Your feminist friend probably won’t appreciate being featured on your site. Don’t post her work on your website or social media without her express permission. Not because you legally “cannot” but because you may damage her professional reputation and your personal relationship.
How do I tell someone I’m not into them / this / that / the other thing?
KINDLY BUT DEFINITIVELY.
Some ideas:
“Thanks for asking, but that’s not right for me right now.”
“I’m not up for that.”
“That’s not my preference.”
Or my absolute favorite: “No.”
How do I change the terms of a collaboration?
OPENLY.
It’s a bit like trying a new move in bed. Will they like it? Can you be absolutely sure they’ll like it? It could go horribly wrong as a surprise, so you might as well ask first. “Hey, I’m interested in [describe your new move]. Have you ever done that before? How does that sound to you?”
Or maybe it’s like deciding to start seeing each other exclusively or stop seeing each other exclusively. You need to have an open conversation, or someone’s feelings will get hurt.
When someone’s feelings get hurt, someone’s car gets keyed.
You know this. ;)
NOTE: This post was originally published on my law firm’s website. I don’t usually cross-post, but this is a necessary preamble to future newsletters.
Consent is foundational to our national conversations, and I’m obsessed with the topic. Why do people disagree about mask mandates, AI, immunization, school curricula, voter rights, and social media? Tensions between individual freedom and interpersonal harmony. Concerns about being forced to do something one doesn’t want to do. It seems like consent is newly central to every article, post, and email I read. Or maybe consent-based issues were always there, and no one was talking about the elephant in the room. I suspect it’s the latter.
You now can look forward to Protect Your Magic every Friday. Next week, we’ll discuss contracts, AI, and consent. Do you have specific questions? Let me know in the comments or send me your query at hello[at]implementlegal.com.
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Thank you for this great read! Really appreciate this correlation and your clarity.