Hello, friends.
Welcome to this week's episode
of the hourly to exit podcast.
I'm here with a another
edition of the copyright
ability series.
This is part two of three.
Last week, talked
about the originality
requirement in order for
something https: otter.
ai Copyright laws, it
has to be copyrightable.
And one of those requirements
is that the material
needs to be original.
And so last week, we
talked about that.
This week, we're going
to talk about something
that is related to
originality, which is.
Derivative derivative works
and then next week we will
talk about public domain
materials and whether or
not we can copyright those
and how that relates to
publicly available materials.
I know there's a lot of
confusion about that.
Just so you know, I did
a prior series about
copyright infringement.
So those were episodes 65,
66, and 67, where I talked
about, what constitutes a
copyright infringement, how
you can avoid accidentally
infringing someone's copyright
and steps you can take To
minimize the possibility
that you will be the victim
of copyright infringement.
So back to today,
copyright ability with
respect to derivatives.
So I get questions like this.
What makes something truly
original versus derivative?
We take so much from so
many sources and develop
our ideas from that.
Another version of that
is there are thousands of
books on leadership and
all of them do not have
super original ideas.
Is each book a
copyrighted original?
And so, I talk in depth
about the original.
and the originality standard
in the prior episode, but
briefly, the confusion when
we use the term, original
is that we think like, I'm
an original and that means
you're, absolutely unique
and innovative and novel.
And when we're talking about.
originality in terms of
copyright protection.
It simply means that it
was independently created
that it is not copied.
it is not that it is the
most mind blowing original
novel that anyone's ever
expressed, but that it
was independently created.
And so.
When we compare original
versus derivative, think about
derivative, on the other hand,
is one of the rights that
we have as copyright owners.
So, briefly, when we are
copyright owners, we have
the exclusive rights to make
copies, to distribute the
work, to publicly perform the
work, to publicly display the
work, and to create derivative
works from that work.
creating derivative works
is an exclusive right
of the copyright owner.
And so that's where this
question comes from, can I be
influenced by somebody else's
work without, tripping into
it being a derivative work?
Just to get it out of the
way, because I know you're
all asking about it, I will
start by having a brief
conversation about fair use.
So fair use is a legal
doctrine that allows
the limited use of
copyrighted material
without needing permission
from the copyright owner.
Remember, copyright ownership
gives us exclusive rights.
That means if somebody
wants to do something
with my copyrighted
work, then they have to
get permission from me.
But fair use says there
are limited circumstances
where they can use your work
without your permission.
So basically, typically,
and all these things are
going to be generalizations.
Of course, there's always
going to be, fact specifics.
But generally, when you're
using fair use, you're taking
that original work and you
are, using it somehow, like,
in commentary or, in, teaching
or in education or research.
and so it's not
transformative nature of
creating something new.
It's about kind of taking.
Your copyrighted work,
some or all of it and using
it, in a way that adding
it to my thing in whole.
So what we need to think
about with fair use is that
fair use is not a license.
Because we're doing it
without a license that is
by definition, we are using
that work without a license.
So what it is, is it is a
defense against a copyright
infringement claim.
So when we are relying on
fair use, we are saying,
I am going to use your
copyrighted work without
permission, because I think
it falls under this exception
to require permission.
And that's all great.
Unless you're the copyright
owner disagrees with you.
And chances are, if you
hear from them, that means
they disagree with you.
They're not, checking in with
you just to tell you what a
brilliant job you did, maybe,
but probably they're checking
in with you because, hey.
that's my work.
You didn't ask me for
permission and either, they
want you to stop doing it
or they want to be paid
for it or maybe both.
the only way to assert
your fair use defense
is in court, right?
Cause that's what
a defense is.
So it is, coming
back and saying.
You're right.
I used it.
I didn't get permission,
but I'm not infringing
your copyright.
And this is why and
that is fact specific.
And that means that you
need to make your case
that it is a fair use.
People will ask, you know,
well, is there a percentage?
Is it 5 percent or 10%?
And there's not
a formula for it.
Courts have consistently
refused to say
there's a formula.
They have a framework for
the court who's listening
to it, to your case.
To evaluate your facts, but
they do not have a formula
that you plug in and say,
okay, I only took 1 page
out of a 300 page novel.
So it's 1, 300 and
therefore it's for us.
It's not, it could be the most
important, maybe it's like
the resolution of the entire.
novel that you've taken
like, is that fair use?
Right?
And so, fair use is user
beware because there is no
guarantee that you'll win.
And even if you do, you've
expended a fair amount of
resources to get there.
All right, so enough
about fair use.
I don't like fair use.
So let's talk about
derivative works.
So again, a derivative work
is a new original work that
includes aspects of a pre
existing copyrighted work.
to create a derivative
work, you need permission
of the copyright.
Holder.
Remember the right to
create derivative work is
an exclusive right held
by the copyright owner.
So you need to get
that right from the
copyright owner, right?
And so derivative works
include things like sequels or
adaptations or translations.
So something where
you're taking.
That original work pre
existing copyrighted work,
like a book, and you are
adding some new elements
to it, like a new language
or making it a sequel or
turning a book into a movie,
and so that new work, the
derivative work is also
eligible for copyright
protection, except if you
don't have the right to use To
create that derivative work.
I don't care how original
what you did like you create
a sequel to Harry Potter.
I don't care how
original it is.
If you don't have permission
to create that sequel, then
even the original parts
of that are not eligible
for copyright protection.
All right.
So, just to compare fair use.
Versus derivative use, you
know, that fair use is kind
of taking some portion.
I'm taking some portion
of the Harry Potter book,
and I'm putting it into
some sort of, slide show
that I'm creating, or I am
having commentary about, the
portrayal of, people with
glasses in popular culture,
or something versus taking.
Harry Potter and
creating a new work
based on Harry Potter.
All right.
So if we get back to that
question, what makes something
original versus derivative?
Well, that isn't the
right question to ask.
And for a couple of reasons,
one, it suggests that there is
some kind of continuum between
original and derivative.
Like we started, once and it's
For me on the left, because I
go left to right is something
completely original right with
not copying or using any 3rd
party material of any kind.
we kind of go and yeah, we
corporate a little bit that
I got from someone else.
So it's mostly original.
I'm having a
little bit or it's.
my idea, but I've
incorporated some stuff
from some other people.
So it's, a little
less original.
Right.
And then at some point, as
I continue to incorporate
somebody else's stuff, it
flips over into derivative
and it doesn't work like that.
copying is very.
Binary.
So either it's
original or it's not.
So if you've copied anything
from somebody else and by
copying, I literally mean
copying, then it doesn't
matter how small it is.
It's not original.
And derivative is a
separate right under
copyright law than copying.
Remember copying is its
own standalone, right?
Under copyright law and
creating derivative works
is its own standalone
right under copyright law.
If it were the same thing,
there would be two of them.
They're different.
And so someone can create
a derivative without
actually copying anything.
So, let's take Harry Potter.
If I don't copy a single word
out of a, Rowling's, book.
But I...
create a novel that is
based on a, boy wizard who,
fought an evil Lord and
survived, death as an infant.
but I've not copied
anything from the novel.
And I create a new
series based on that.
I have, infringed on her
JK Rawlings right to create
derivative works based on
her Harry Potter novels, even
though I have not literally
copied any part of her novel.
this is where it gets tricky,
which is, are we taking an
idea which is permissible?
We cannot copyright ideas.
Versus have we taken so
much of an idea that is
unique, like a boy wizard
he was almost killed as an
infant who defeats a Lord.
And created something
that trips us into
being a derivative.
And so there is a continuum
there, not between how much
is copied and how much is
derivative, but there's
a continuum between the
nature of the idea that
you're taking and whether
or not you're using it to
create a derivative from it.
I think it's
fairly easy to see.
Please let me know if it's
not, when we look at literary
fiction example, like Harry
Potter versus what we do
and what we do every day.
And so, when we are influenced
and create our expertise,
you know, we are taking
in ideas all the time
and we are incorporating
them into our work.
We are improving upon them.
We are seeing them
from new ways.
We're writing about it.
there's not align.
There's not a bright line
where it's idea idea idea.
I'm taking an idea idea and
then it becomes a derivative.
So that's what's kind of,
that it depends part so
much of legal analysis.
That it really does depend
on the circumstances.
So the question about
leadership books, for
instance, there are a lot
of leadership books and
there are lots of generic
leadership skills that we
learn throughout our careers.
And so if we're talking about,
you the way to build culture
and, you to lead by example
and reward the behaviors you
want to see and things like
that that are considered
generally Generic leadership
skills, and for me to write
about that, even though I
read it in somebody else's
book is without copying, but
taking the ideas about how
to build leadership skills
is working with an idea,
but let's say someone has.
Written about, some very
innovative, very distinctive
leadership skills that
everyone immediately knows.
I wish I had a good example
a real life example of
someone who does something
radically different in order
to, create leadership skills.
and I can't even say,
like, going out in
wilderness things.
I know that the people who
do that, but someone who does
something radically different.
Now, for you to take that
idea, even though you
don't copy the words from
their book, but you take
their radically different
way of teaching leadership
skills and you use them to
create your own training
program, that starts to
look like a derivative work.
And I say it looks like
it because it really would
need more analysis to know
exactly whether or not you
create a derivative work.
And, to make an analogy
that maybe will help
also drive this home.
if we think about, sent
a fair in literature.
it is a French term that
refers to the situations,
characters, settings, or
incidents that are standard
or customary in a particular
genre, and therefore
they aren't protectable.
So, scenes d'affaires
are not protectable
under copyright law.
So examples of that would be,
in a vampire movie, that the
vampire sleeps in a casket and
they can't go out during the
day and they don't eat garlic
or are afraid of garlic.
Those aren't protectable
elements, but if you have
a vampire who, travels to
the dark side of the moon
or to get away from the
sun, that is not even that
would not qualify as a
sense of air and it would
be protectable that concept.
Even if you don't, copy
the words from that novel,
but if you take the concept
of a vampire that travels
to the dark side of the
moon, Maybe there's a lot
of books out there with
that, but, you it may be
that would be derivative.
Right?
And so it is nuanced.
There is not a bright line
like fair use something
you're taking 1 of these
non literary features.
Like, you're not literally
copying, but you're using.
some distinctive and
protectable elements of the
original work and so that
people would identify your
work with the other work.
someone mentioned
this that if.
a normal person read your
work and they assumed that
it was based on some other
known person's work, then
probably it is a derivative.
that is just if we
wanted to have some
kind of really rough.
Test that would be like, would
it just kind of the ordinary
person go, Oh, this must
be, based on, Harry Potter,
because this kid's got, a
lightning scar on his head.
All right, that is the best
we can do without looking at
the specific circumstances.
that brings us to,
okay, how do I.
Navigate, the fact that
I'm out here in the world
consuming information
from all over the place.
And I'd like to leave
you with what we call the
golden rule of copyrights
And that is if you
didn't create it.
Then you don't own it
and you can't use it
without permission.
And so that is kind of
the fundamental principle
of copyright law, which
is to protect the rights
of the creators, that the
right that the creator
has over their original
work, it grants exclusive
rights to the creator.
when we are in the
expertise-based business.
our inventory is copyrighted
works generally when we
are creating deliverables
for our clients.
Generally that is a
copyrighted work when we
are delivering a program,
you know, a training, that's
generally a copyrighted work.
Typically.
what work trade is, is the
delivery of copyrighted works.
so I'll call that
our inventory.
When when we create
inventory, that means we
need raw materials, right?
We need to get in order
to create inventory.
We need raw materials.
And some of that will
come from us from just our
experiences in the world, from
the certifications that we've
received that, maybe a prior
job and some things that we
read some books that we read
some courses that we took.
And those are all things
that are raw materials in
creating our inventory, but
all of those things when
we are experts are also
copyrighted works being.
That is somebody else's
property when we are
taking, parts of somebody's,
course, or parts of
somebody's book or, parts
of somebody else's training.
And so we should no longer.
Expect to receive for free
the raw materials to create
our inventory than a car
manufacturer would expect
to receive for free the raw
materials to create their
inventory, which is cars
just because our inventory
is intellectual and the raw
materials are intellectual
does not mean it isn't a real.
Asset with value with
a owner who has a right
to be paid for it.
So that would be the golden
rule of copyrights and that
is mutual when we build a
culture of, the golden rule
of copyright, people are
respecting your rights as
a creator and you respect
their rights as a creator.
And so, not that I think
that anyone is doing
anything, they're trying
to intentionally infringe
on anyone's copyright.
But this is where we get into
that unintentional copyright
infringement territory when
we are trying to parse, what
percentage is somebody's
material I can use to you.
So the Copyright Ability
Series is sponsored
by Think Beyond IP.
Think Beyond IP helps B2B
experts with corporate clients
lay the intellectual property
foundation required to build
new scalable revenue streams.
Think Beyond IP has the legal
expertise and the corporate
experience to provide expert
focus to the issues that
matter most to you and to
your corporate clients.
And also please check
out thinkbeyondip.
com to get your free
assessment is your
expertise copyrightable.
All right.
Thanks again.
See you next time.