Uh, ladies.
Welcome to this week's episode
of the Hourly to Exit podcast.
I am starting a new series
about copyrightability.
As you know, U.
S.
copyright law protects
original works of authorship.
The works that qualify
are referred to as
being copyrightable.
So this series will
focus on what makes
a work copyrightable.
This will be a
three part series.
This part one will
be about originality.
Part two will be about
derivatives and part
three will be about public
domain and related issues.
So to start with originality,
it was born from a
workshop experience where
we were going over my.
is your expertise
copyrightable assessment
and there are so many
questions about originality
that I knew I had to
explain it a bit more.
So, starting with the U.
S.
Supreme Court
regarding originality.
The Supreme Court said that
the originality requirement
means only that the work was
independently created by the
author, as opposed to copied
from other works, and that
it possesses at least some
minimal degree of creativity.
So, originality has Two
elements 1st independence,
the work must be created
without directly copying
or adapting from another
source and creativity.
And this is a very
basic threshold.
a lot of questions about, how
unique does it need to be?
what if?
something I've been thinking
about for years and other
people have written about it.
Also, it's not about artistic
merit and is not about
how innovative it is, the,
you can write about some
same old standard ideas
about, how to train a dog.
But the way that you write
about it, the way that
you talk about it, the
way that you illustrate
it has to be original.
So that's the creativity is
really about, not copying.
Right?
Still kind of the same way of.
Talking about originality,
derivatives, we'll get their
own episode derivatives
are works that are
adaptations or modifications
of preexisting works.
So that's not what we're
talking about today.
We're talking about
independent creation.
So.
I'm going to flip the order
that I talk about it though.
We talked about independent
creativity, independent
creation with a minimum
degree of creativity.
I'm going to talk about the
minimum degree of creativity
first and then close it
out with the independence.
So because the threshold
for creativity is.
So low, minimal degree of
creativity, I think it'll
be really helpful talk
about a few examples of what
doesn't meet the threshold.
And just remember, as
I talk about these,
these are just examples.
There's no way, of course, I
could provide an exhaustive
list, but this is for you
to help you think about.
Honestly, like, how low
the bar is, but that if
you don't meet that bar,
then, that's probably not
something that would meet the
copyright ability standards.
All right, so 1st, when
no creativity is involved
in footage or photograph,
I just like to talk about
this 1 because, lot of
people have ring cameras or
dash cams and, you is what
is recorded copyrightable
and this is an example of
a mechanical recording,
for that ring camera.
It's a preposition device.
your dash cam.
also, you put it there
and then you drive around
and go about your day
and you aren't composing
shots with your dash cam.
You're not composing shots
with your ring camera.
so generally, and I'll use
some squishy terms, like
generally and probably
and maybe a night because
obviously everything is.
specific, but generally,
these preposition devices,
where you're not, staging
the shot are not going
to meet the requisite
threshold of originality.
Now, that doesn't mean that
footage is in the public
domain, which we'll talk about
in part 3, there will still
be a protectable interest.
Probably in that footage and
people have rights to privacy.
So anyone who appears in
there, their license plates
or their property and people
have publicity rights.
So, you know, you can't, make
somebody an Internet star
without their permission.
There might be music in there.
There might be, a store
or something in there.
So, that doesn't mean just
because it was on a dash
cam that there's no, nobody
has any predictable rights.
They might, but they're not
probably not copyrightable
list of ingredients and
instructions, for recipe.
You really can't separate
the idea of the recipe kind
of the non protectable.
Parts of it, the ingredient
list, the quantities,
the basics of how to stir
and how hot the oven is.
the expression of the
idea is copyrighted, but
the idea itself isn't.
But when all you have that
expression is just kind of.
Basically facts, you can't
copyright quantities,
ingredients, degrees of oven.
So when you have a recipe
book, I mean, you I'm sure
or cookbook, I guess you
didn't say you probably have
some cookbooks on your shelf
and you'll see that they
have copyright protection.
So the copyright doesn't.
Apply to the recipe.
It applies to all the little
stories that go around it.
you'll see if you go online
and you look for recipe
online and it's buried
at the bottom of this
story about the recipe.
It's because the
recipe itself.
Is not protectable,
but the story about
it, is protectable.
and, so that is, the reason
for your frustration.
If you're anything like
me, I'm always frustrated
when I'm trying to
find the recipe online.
Another thing that is not
copyrightable something that's
inevitable that different
creators acting completely
independently without any
idea what the other person is
doing would arrive at similar
or even identical results,
because there's just so many
ways to express an idea.
So this is something
that's functional like
writing about the rules
of how to play checkers.
How many ways are
there to describe how
to play checkers or.
How to, train a dog, I mean,
there's, could be something
original about it, but there's
some things that are just,
2 independent people without
even knowing the other exists
and they're probably going to
come up with the same content
that is considered inevitable
and probably not going to
meet the, minimum standards of
creativity, there is a French
term called sends up there.
So this refers to situations,
characters, settings,
or incidents that are
standard or customary
to a particular genre.
And so those would
not be protectable.
for instance.
You're writing
a vampire novel.
Your vampire
sleeps in a casket.
She doesn't go out at
night, during the day, and
she's afraid of garlic.
Well, guess what?
Those elements are
not copyrightable.
You can't put those things
in your vampire novel, claim
copyright protection for them,
and nobody else can write
about those things, right?
So those standard situations,
standard characteristics,
those things that.
You know, by nature of the
genre of the, even if it's
a fictional and highly
creative, those elements that
are the son's affair would
not be protectable next.
We have common geometric
shapes are familiar symbols,
like a stop sign or a smiley
face or a piece symbol.
They don't have the necessary
level of originality.
They're considered
functional or utilitarian.
And quite frankly, just
too simple to get, the
cover up protection.
Sometimes you'll have
a geographic shape.
You'll see an outline of a
country outline of the US.
You'll see that people do
an outline of a state or
other natural formations.
The outline of, A
mountain, you know,
Matterhorn or something.
And so these are not the
outlines, or even, whole
painting of it, that would
not be, but the original
elements of it would be
so the shape of the U.
S.
No, but if you then take
it and paint it in a
way that is creative.
Then that would be, I
see these cutting boards
in this shape of the
state, and then they, do
some etchings on there.
the shape of that cutting
board and the shape of
the state would not be
copyrightable, but, the
creative etchings that are on
there, might be copyrightable.
So it is the artistic
expression that you layer
on top of the symbol, Crazy
looking smiley face or
crazy looking piece of ball.
that artistic expression,
would be copyrightable,
but not the symbol itself.
And works in consisting
entirely of commonly
known information or facts
that does not contain
original authorship.
So this would apply to
say, a standard calendar,
or a directory of people.
So, when we look at calendars
and you'll get 1 that has
a copyright claim on it
and that is because of
all the, Photographs of,
firefighters or whatever
it is, or dogs pooping.
I saw one recently
calendar of dogs pooping
and interesting places.
so those elements are
copywritable, but the calendar
piece is not so, you know,
I keep, myself organized by
calendars that I download
off the Internet that are
just plain, just the numbers
and the months and obviously
those are not copyrightable
a directory of names or
facts might be copyrightable
under certain circumstances,
depending on some level of
creativity that you add.
So, something about
the coordination or
arrangement needs to be,
creative now here, the
standard of creativity.
Will need to be a little
higher than just the minimal
because you're starting with
facts that are commonly known.
So if you want to get
protection over facts that are
commonly known, then you do
need to do something that is
kind of innovative in the way
that you're presenting them.
It can't just be that you
hand wrote them, or something.
so that unique expression
or presentation.
Of the information or facts or
ideas that unique expression
or presentation might be
protectable, but not the
underlying facts themselves.
So those are some examples
of what does not meet the
minimum level of creativity.
Use those to think about
some others that are similar,
that are just kind of common.
And it's really hard
to, allow someone to get
exclusive rights that you
get with copyright for
these things that are just
everywhere and common.
And by the way, that
doesn't mean publicly known.
And we'll talk about that
in public domain, episode.
So, the fact that
something's publicly known
does not mean that it.
Isn't creative all
right now, we're going
to the 2nd element,
which is independence.
So, when we're talking
about independence, I'm
going to assume that we are
trying to create it without
copying another source.
That is our intent to
create something original.
We sat down at our computer.
Started typing, and we believe
that it is independent and
that we didn't copy anyone.
However, there's this
thing called unconscious
copying and that came up
in my workshop as well.
Like, well, what about there?
All these people out
there talking about
all these things.
How do I make sure
that I don't, you know.
and that is an issue.
another term I liked,
think it's a UK term.
I just saw this on the
internet and I couldn't
find out more about it,
but I really liked it.
It's called ambient influence,
which I think is also an
interesting way to look
at it, but unconscious
copying, ambient influence,
it does have implications
under copyright law.
it is, you know, what happens
if you're unconsciously
influenced by other
people's work, especially
something that's really
influential in the field
and their presence is,
ambient, all over the place.
Whenever we're talking about
a certain area, that we may.
engage in that person's
work keeps popping up, it's
hard to write about being
brave without a little bit
of Brene Brown sneaking in
there or, you know, writing
a daily email list, maybe
you sound a little bit
like Seth Godin, right?
So, but the doctrine
of subconscious copying
does allow for liability
without regard to the
intent or knowledge.
Of the copying.
So even if the copying is
unconscious, if it rises
to the level of copyright
infringement, and you'll need
to go to the last series, I
just did a three part series
on copyright infringement.
So, but if we have
subconscious copying.
And it rises to the level
of a copyright infringement,
then the fact that you
did not intend Or didn't
even realize that you're
copying will not save you.
So you can be on the hook for
copying someone else's work,
even if you honestly didn't
mean to and didn't know it.
so, the issue really is,
in today's world, we're
constantly bombarded
with information online.
And when this doctrine
of subconscious copying,
was created, it was
a different world.
We weren't constantly bombed.
Barded with information
all day, every day, in
podcasts, you know, in our
scrolling through our phone,
everywhere we go, we're
getting information from a
lot of sources and that we
may not even realize it.
and so there has been
a push against this
doctrine, but the end of
the day, it is, between.
The unconscious copier
and the person who has a
valid copyright, who's in a
better position to prevent
it from happening again.
We, in the previous series,
we talk about what we can
do as copyright owners.
To minimize the possibility
of somebody copying our
work, but that applies
to conscious copying.
It doesn't apply.
There's no way for
us to protect against
subconscious copying.
So, between the 2,
who is in the better
position to prevent it?
And at the end of the day,
it is the person who may have
subconsciously copied because
it would be incredibly.
easy to say, hey, you know, I
thought I did it about myself.
it's easy to say that and
it'd be very difficult
for the person who was, in
fact, copied to prove that.
No, You didn't it was
conscious copying and not
subconscious copying and so
it kind of provide it would
provide an offense that would
be unfair to the person with
the copyright protection.
So what does that
mean for you?
So you need to be
especially important.
This is especially
important for you.
If you're in a niche that
has just a handful of
really prominent voices
that basically most people
recognize and so you
need to make sure that.
Their works don't seep
into your subconscious when
you're creating content.
So be aware.
There are these prominent
voices, and I need to be
aware that I'm not somehow
subconsciously incorporating
their voices and they do
that by making sure that
you have your own voice.
Remember the ideas are
freely available, You can
talk about their ideas.
You can talk about bravery.
You can talk about, being
unique and showing up and
positioning and, niches and
all the things and leadership,
all the things that we hear
from big voices all the time.
You can take their ideas.
Those are freely usable,
but the expression
needs to be original.
So make sure that when you're
writing about these things.
That you are mindful that
those prominent voices
aren't seeping into your work
because it is on you to make
sure that doesn't have that.
there are, some tools
to make sure that you
haven't done that.
I noticed recently when I
was doing spell check on
something so this is in
word that it had option to
check if you find something
on the Internet and I tried
it just to see how it work.
And frankly.
Which.
kept working and
working and working and
nothing ever happened.
And so, you know, I
don't have all day and
I stopped using it.
But, there are tools, if
you are worried about that,
there are tools to use that.
You can make sure you
haven't subconsciously
copied something.
and so, know it seems a little
bit scary that you can be.
Caught for subconscious
copying, but want to emphasize
the ideas are freely usable.
So if you subconsciously take
somebody's idea, it's okay.
But if you subconsciously
create a copyright
infringement.
Which means you've
copied their work, you've
copied their expression,
then that is not okay.
And we find this, frankly,
we find that we don't
find this so much in
the work that we do.
We know that this happens
a lot in music because,
for some kind of.
beat or chord or thing
to get into your brain.
And then you sit down and
write without realizing
that you heard it somewhere.
is a lot easier to do, than
it is in the work that we do.
so I don't want you to panic
about it, but I do want
you to be mindful of it.
So, thank you for
another episode.
I do want to say that 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.
I encourage you to get
your free assessment.
Is your expertise
copyrightable?
You can get that
at thinkbeyondip.
com.
I'll see you next time.
Thanks guys.