E60: Is Your Expertise Copyrightable?

you can find the recordings on my LinkedIn live profile and they're also, Audio on, hourly to exit And the video you can find on my YouTube panel. And so this month we're talking about, how to copyright your expertise. These LinkedIn lives are about how I help experts, protect their expertise through copyrights and contracts. you should know that I do take requests. always feel free to, send your questions to me. And if I think they'd make a great LinkedIn live, then.

We shall have a LinkedIn live about it. So, let's get started At the end of this, of course there will be time for you to, ask your questions. Typically, I like to keep these to half an hour. We can definitely go over if anyone wants to go over.

and because the nature of sometimes the questions that I get, that if they are too specific to your particular, Concerns, then that crosses over into legal advice, which I cannot give you on LinkedIn live, but I can answer your questions about, the copyright law and about the process. I look forward to hearing, your questions. So, How to copyright your expertise, and stop your competitors and former clients. 'cause sometimes we have problems with that from stealing your stuff.

So first, quickly, an overview of the copyright law. So, of course, everything that I'm gonna talk about today is going to be with respect to the US copyright laws. and on a federal level there are different, Laws that apply on a state, like you can actually get a state copyright, um, which is common law copyright. but we're talking about the copyright protections that we get under us copyright law, the, kind that you probably think about.

those are the federal US copyright laws, and that's what we'll talk about today. And so what are copyrights? So basically copyrights are the exclusive bundle of rights. It's not just one, right? It's a bundle of rights at, that the owner of the copyright has in connection with the exploitation of that work. And I'm gonna. Refer to the copyrighted material as the work, and we'll talk more about what that means, but that's the terminology that I'll use.

And so with respect to the work, the copyright owner has the exclusive right with respect to reproduction. With respect to creating derivative works, that means, taking a book and turning it into a movie to distribute copies of it, to make copies and, distribute it publicly in particular. To perform it. So a screenplay, a play, the right to perform it, that is a copyright to display it.

If it's artwork, the right to display it publicly is a copyright and the right to trans. So, music, you know, the right to transmit music over the airways that is a copyright. So that bundle of rights are comprised of copyrights under us copyright law. And when you have a copyrightable material and you are the owner of that copyrightable material, you have the exclusive rights to do those bundle of things. So when. Is their work protected?

At what point does the copyright attach to a work that has been created? So that happens at the moment of creation under us copyright laws, the protection. attaches automatically. The copyrights are created at the time that the work is created.

So the moment that you write something down, you take a photograph, you paint something on canvas, you record something with a, video camera at the time that the work is created, the copyright attaches at that time to the human being who created that work. So do you have to register copyright? do you have to register with a copyright office in order for that protection to, be effective? No, you do not. Copyright protects at the moment. It attaches at the moment of creation.

I. But here we're talking about registering your copyright, and there are a number of reasons why you want to register a copyright. And I always hope people can read things of course I always have it on a huge screen when I make these slides. But why would we register, with our, work with the copyright office when protection is automatic? And there are four really main reasons. There are others, but the main reasons are.

The biggie is, the first one is that it enables you to file a lawsuit to enforce your copyrights in federal court. So even though the rights, exclusive rights attached to you at the time of creation, if there's someone goes out there and copies your book and you want to. Sue them in federal court. In order to enforce your copyright, it must be registered with a copyright office first. So that is a primary reason. the second is that it provides evidence that your copyright is valid.

If you've gone through the process of, registering your, work with the copyright office, finishing the application, paying the fee, submitting a copy of your work to, the copyright office, and that has been accepted by the copyright office that provides evidence that you actually have a valid copyright, so that you can enforce your copyright against other parties. It also enables you to claim certain statutory damages and attorney's fees.

So statutory damages are damages that are, dictated by law. So typically actual damages would be, you hit my car, I have to pay $5,000 to. get it fixed and therefore you owe my actual damages are $5,000. When there are statutory damages, the law says, anytime you hit a car, you automatically get 5,000. You get, let's say, a thousand dollars. even if there's no damages, like have yet hit my bumper. I get a thousand dollars.

That would be an example of statutory damage where the law just dictates what the damages will be. So you don't have to prove what your actual damages are. And there are definitely benefits to that. let's say, somebody steals the entire content of my Great American novel that I have sold two copies of. Right. what are my actual damages? If you know, there's actually no market for my fantastic novel, but with their statutory damages, you stole my entire novel. Statutory damages would give me.

the amount dictated by law, that would be my damages just because you stole my work. So that would be the benefit there. And then if you do have to go to court, and sue someone, then that costs money. I mean, one of the reasons people generally, avoid taking someone to court is because of those attorney's fees. And so if you have your registered, copyright, then you would be able to be awarded attorney's fees as well. I see Tony has a question here.

What about someone that copies your program that's been copyrighted and are working your program? Oh, okay. That, is going to be a derivative and so somebody takes what you have and they create a derivative of it. Guess what? That's one of the bundle of the copyrights. To create something based on somebody else's work is creating a derivative, and that is the exclusive right of the copyright owners for anyone to take their work and to create another work based on it.

So that would be a breach of your copyright and an infringement, assuming you have a. copyrighted, work. and then the fourth reason is it puts others on notice, that your work is protected and it lets the world know who the copyright owner is. So you can't see it. Of course, down here I have my, copyright notice. That has, the c in a circle.

The 20, 23 is when I created these wonderful slides and they're owned by my, law firm, Aaron oss Lockey, L l c. So that does put the world on notice when we put the C, with the copyright notice on the material itself. But, let's say it was, hourly exit. Instead of Aaron Austin Law and then go, what's that? And so in order for them to find me like when you register it, then they can find it and, find the owner of it.

So if they wanna license rights to it, wanna buy rights to it, wanna create a derivative of it, then they know how to find the copyright owner. So how to register a copyright. So there's Three main, steps. one, you have to make sure that the work is copyrightable. There are rules about what is eligible for copyright protection. That would be something that is copyrightable. That is by far the most complex question, and the majority of our time will be spent there.

The second thing, you have to file the copyright application and you have to file a copy of the work with the Library of Congress. And so just very briefly, I'm gonna talk about the application process. you can now apply online, go to the, electronic copyright office, for whatever reasons, the u r L was very complicated. So you just want to, Google it. and you can for most, works.

You can register them online, and the whole process would take place online, including the submission of the work, assuming it's digital, and there are. step-by-step process for how you actually fill out each of those, areas. I wanna spend most of the time with what's copyrightable today. And I think what I'm going to do is another one that kind of walks through the application process, so you can see it. But I wanna start with what's copyrightable. And so that is the electronic version.

There's also paper versions that, back when I was doing film work, we had to print the stuff out and, type in, the information about the movie and then send a reel of the movie into the copyright office. So you can either do it online or you can do it. on paper, the filing fee is, a little more for paper, but the application fee itself is not super high. It's between, $45 and $85 I believe, that's the registration process.

And know, of course what I think is really cool, I don't think most people realize this, but when you, register your work with a copyright office, that copy goes into the library of Congress, so I think that's pretty cool. again, I wanna spend most of the time talking about whether or not the work is copyrightable. and. There are a couple of issues we need to think about. So Copyrightable works have to fall into one of these categories. Literary work. That would be nonfiction and fiction.

So that would be a book or an article, a musical composition. That would be the lyrics or the, notes of music, dramatic work, like a play, a pantomime or Choreography, those are copyrightable sending that they've been recorded. pictorial graphic, that's artwork, including sculptures. Audio, visual work, that would be like motion pictures or videos, sound recordings. That would be the recording of a song. The musical composition would be the written part of it.

The recording would be, know, when you sing it. And record it. Architectural work and source code for computers is considered literary work and is copyrightable. what It cannot be. Importantly is it has to be something that is creative and by a human. And so the things that aren't creative or aren't considered to be created by a human are the things that are going to be excluded, and the copyright office will not. analyze how, unique it is.

It doesn't have to be brilliance, it can be pretty ordinary, but still, so long as it is created by a human and there's some element of creativity, then it would be eligible. So things that are not eligible because the copyright office does not deem them to be sufficiently creative, are ideas, concepts, and processes. I mean, these are not, if until we have expressed it in some way until we have written it down.

A book until we have created a video about it, until we have documented it, and the expression of our idea, the expression of the concept, the expression of the process that. Expression is copyrightable, but the ideas itself, the concepts themselves are not titles, names, logos. They're not considered sufficiently creative, even if they are very unique, for copyright protection. Those can be eligible for trademark protection, but not copyright protection.

You cannot get copyright protection for something that is based on somebody else's, work, including something that was your former employers. So maybe something that you got from your former employer and you're using it to create, a course based on it. You can't get copyright protection from it if you don't own the underlying material or don't have rights to it.

useful objects like clothing or tools, because sculpture is copyrightable, but if it's something that's just useful, that would not be copyrightable. If it's in the public domain, we'll talk about what that is. common geometric shapes and things that are entirely composed of information, those are not copyrightable. So in order for it to be eligible for copyright has to be in that fixed, tangible medium.

So even though we call it intellectual property, an intangible, in order for it to be eligible for copyright protection, it has to be fixed in a tangible medium, written down, recorded, painted, sketched, carved. so those things are required. That would mean that things that. Aren't recorded or put in some sort of tangible form aren't copyrightable. So if you improvise a speech or performance and it's not written anywhere, it's not recorded. That is not copyrightable.

ordinary conversation even no matter how brilliant, sometimes we say really brilliant things in conversation. not copyrightable, again, a choreographic work that has not been recorded. Then any of those things, if it is recorded by someone who didn't have the authority to do it. So let's say you're at a concert and it's not being recorded by the performers and they improvise something and you're in the audience and you record it, you can't, get cover, protection for your recording.

So it must be created by a human. Now that AI is all over the news, of course. something that's purely AI generated, the copyright office will reject that. There was a, recent ruling about that of a, image. It was a painting where, it was a hundred percent AI generated and the copyright office rejected it. This will of course, continue to evolve, as. AI evolves and, we add layers to it. Let's say we ask for an outline, but then we create a book from that outline.

Like, these are all things that are maybes, something that's just a natural phenomenon like driftwood beautiful, right? But you can't copyright it as your sculpture and things that are just kind of random. My example here is music created by A wind chime that's not created by human. even though the chime is created by human, the music is not, and probably not copyrightable. And then a sufficient amount of creativity.

And so when something does not involve human creativity, and that would be the ai, generated, element, but also things like, footage from a dash cam or footage from, we see this ring. Cameras all the time. that footage, does not involve any human creativity. We didn't, block it. We didn't choose the subject matter. We didn't time it or anything. and so generally that would not be copyrightable. and then if there's only a few ways to expression ideas.

So even if you express something, I write out a recipe, but there's only so many ways to. crate chocolate chip cookies. And there's only so many ways to, sift, flour and mix things and, put peaks on egg whites. So, generally it would not be copyrightable. then another one is aire, which is Those beets in a plot that necessarily come from the subject of the plot. So let's take a vampire novel, for instance. I have a vampire novel and I've got, he sleeps in a casket. He doesn't go out in the sun.

is afraid of garlic. Um, he lives forever. Like I can't claim copyright protection in those things that are obviously part of every, novel. but just generally, I will say that, the copyright ability of the work is going to be one of the more complicated matters. because there are rules, there are exceptions to the rules. there will always be, Things like a stop sign that you would think is not copyrightable.

obviously we know from Andy Warhol that you can take something very ordinary and make it extraordinary and extremely valuable. so there's always going to be an exception to the rules. anyway, I will stop there 'cause I know I have questions and I wanna make sure I get to them. Okay. Is a reader's guide to a book considered a derivative?

So, this is an interesting question because I know that I see reader's, guides to books, on Amazon, and I have looked into whether or not they got permission for it, based on the law, I would consider it a derivative. and not fair use. We're not talking about fair use today, but it's not fair use. It I would consider it a derivative. You've taken somebody else's work. Now the question is, how much of it have you taken?

let's say it is a book club guide, I've seen those where you just have a list of questions like, this character and that character seemed to be at odds. What do you think about that? if you're talking about that kind of thing that makes you go back and read the book and understand the book, you cannot process it without the book.

I would think that is, not a derivative, that is just something that's a discussion guide versus something that's literally like, I can't remember what they were called, the things with the yellow, with a black, I can't remember what it's called. That they, summarize the book that is a hundred percent a derivative. And, I would not, do that, without permission from the copyright owner. how long does it take to register copyright? So, I often see the slides from the copyright symbol.

The content's not registered. Should we register to profile? Okay. So couple of things. The process to register a copyright is not very long. Again, it is having your work confirming that it is copyrightable. completing the application. The application will take approximately, depending, we know if you have everything that you need and you understand the questions. it would take, approximately, an hour, maybe 45 minutes to complete the application.

then you need to submit the fee, and then you need to send in the deposit, which would be a copy of the work that you wanna have registered to the copyright office. And so once they receive all of those things, then as if they have no questions, they go great, looks great. It would take about one to two months for the registration to be completed and for you to get your, confirmation back from the copyright office. They may have some questions if they have some questions.

It may go as long as eight months, depending on the nature of their questions. But it shouldn't take that long. That would be pretty extraordinary. but you should know that again, copyright protection attaches at the moment you create it. So the registration is because you want to enforce your rights in the copyright office, right, court. And so you put that c the copyright symbol on it. To give notice to the world that you are claiming copyright ownership in it.

whether or not, how long it takes for the copyright office to get through your application and send you, certificate back, two to eight months. but again, your copyright is, is attached that whole time since you created it. Should we register your proposals? I would say no one, I is it something that you would want to enforce in court? would you be willing to hire an attorney to get someone to not, copy your proposal? and maybe the answer to that is yes. I don't know the answer to that.

But generally it is those things that, would, I wanna call 'em your money makers, the things that provide value to your end client, the thing that the client is paying you for. Now, your proposals obviously entice your client to pay you, but is the proposal what they get value from? Is that what they're actually paying you for? So if they're paying you for your trainings, they're paying you for. Your courses, they're paying you for your workshops, they're paying you for your workbooks.

Those are the things, those that you direct revenue makers, I think would be the place where I would focus most of my attention For registering the copyright. we make copyrightable materials all day, every day, every time you, write a proposal, every time you make a blog post, every time you post on LinkedIn, theoretically those are all copyrightable works, but you don't wanna to get so wrapped up in trying to copyright everything that you create because most of them don't have kind of that.

Evergreen value, that moneymaking value that your other, the deliverables that you have for your clients do so. Okay. Do you need to copyright each? Slide presentation or proposals in order to protect the contents. this slide presentation, for instance, this is one work. So if that's what you mean. I would register this entire thing, so this would be my work. I will do another one where I walk through an application, but the application will ask you, what's the title?

And I'll say, it's how to Copyright your Expertise. What kind is it? This is, literary. there are some. kind of visual elements to them, but I don't claim any copyright, protection in the visual elements. So it would be the content. So it would be a literary work. And who is the owner? who created it? I created it. but the owner is Erin Austin Law. P l c. 'cause I'm an employee of it, so it is actually the owner.

And so it would be, Just, and this would be one work, and then I would send in this entire 19 slides to the copyright office, and that would be the deposit, with a copyright office. So that would not be an slide by slide. and same would go for your proposal. I assume your proposal would be, maybe if it's a P D F, the same, thing. You do the whole thing. and that would be one work that you would register. And by the way, a work, there are different definitions of works depending on what it is.

So a book is like, one work. but a series of magazines might be. More than one work, depending on, know, if you did it before or after it was published. So there's different rules about something that's before it's published versus after it's published, which would definitely be beyond today, but generally one work would be one unified expression, a song, a photograph. a painting, an article. you can register entire website. most people don't because websites change a lot.

for my facilitated decision making sessions, I craft a design, write a script, create participants, of compilation. So when you have more than one. So let's say I have a workshop. So let's say I wanted to register this and I wanted to not just register the slides, but I also wanted to register the recording. that would still just be one work. And so I would choose the one that this is mostly, so I would choose as the type of work, the audio visual. I'll go So I would choose the audio visual one.

And so I would say it's an audio visual work. it has, video and sound. And then I would also say there'd be a place where I could also add the script. If I were to do a transcript and the words that are on the slides as well. So, you can register more than one category in one, application. And so you would just, there are places where you put notes that tells you like, The main one is that would depend on which application you use, literary, musical, audio, visual, et cetera.

And then you'd also have places to show that you also have other types of, work in that same application. If I transition my company from a sole proprietor, D V A to an L l C, do the copyright transfer automatically, no transfers of registered co. So, I'll say this, if you haven't registered them yet, then you would just want to, when you create your L L C, you would, make that a contribution.

Just like when you create an L L C, you're gonna put money in there, and you would also contribute, whatever. Other assets you want to contribute to, whether it's your office equipment or your, intellectual assets, if you have already registered them in your name. So if I go in into the copyright office and I see Ellen Grace Henson as the owner of some, book, and you want to then transfer that to your company. you would need to register the transfer.

So that is another, process that you can do through the copyright office where you have an assignment of the rights and you would state what it is. I'm assigning the rights and my book to, My L l C and then you would register that in the copyright office. Therefore, the, owner who was currently Ellen Grace, would then become, the name of my company. And so you would want to properly register that the transfer of copyrights requires that it is in writing and signed. So you do wanna do that.

My sessions are live. No recording. So if there's no recording, then you would register. I assume that you have, um, some materials that you're presenting. maybe there is. You have a script that you use. It's been written, recorded somehow, captured electronically, so it has to be in a fixed medium in order for it to be copyrightable. My main question is that it is compiled from others and other resources because of this. That's correct.

It is not copyrightable if you do not have permission if it is based on a someone else's copyrightable materials. Now, let's say I had in here, A, image that I got off the internet that, showed, a graph about what types of materials are copyrighted per year and I could not claim copyright. Ownership of that graph. Now, that is, I haven't created a derivative of it. I've used it in this presentation.

technically I should have gotten, a consent to use it, but it doesn't defeat the copyright ability of my presentation. What I would do is when I register this in the copyright office, I would say, I'm registering this, Presentation and there'd be a place for me to say, I do not claim ownership of the graph. that explains, the, the breakdown of copyrightable topics. so there would be a place where you would disclaim, ownership of those parts that you do not own.

So whether or not the whole, resource is copyrightable or not would depend on whether or not it is, a derivative. I think I've hit all of your questions. So if you have any questions, additional questions, you can find me@thinkbeyondip.com. there I have additional resources about, what is. copyrightable. I do have just, on today, a assessment that also helps walk you through the question of whether or not your expertise is copyrightable. So you can download that from think beyond ip.com.

And also I do have, ways for you to, get legal advice if you need it. If you feel like d i y is not your thing and you'd like some legal advice around this. You do have ways to reach me there as well, and get your questions answered. I thank you so much for your time and then also always I should have on here on here at erin@thinkbeyondip.com with any of your questions. Thanks so much.