E72: Copyrightability Part 2. What Makes Something Truly Original versus Derivative?

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.