Episode 71

E71: The Copyrightability Series–Part 1: Delving into the Elements of Originality and Independence

In this new series, we'll tackle the ins and outs of copyright law and what it takes for a work to be considered copyrightable. 

Drawing from real-life experiences and legal expertise, This episode brings clarity to the complex topic of originality. 

Discover how the US Supreme Court's definition of originality factors into independence and creativity. Learn about the minimal degree of creativity required for a work to be considered copyrightable.

Key Takeaways from this Episode: 🔍

1️⃣ Originality and Creativity: In order for a work to be copyrightable, it must be independently created without directly copying or adapting from another source, and possess at least some minimal degree of creativity. It's not about how unique or innovative the work is, but rather how it's expressed.

2️⃣ What Doesn't Meet the Threshold: There are several examples of works that do not meet the minimum level of creativity required for copyright protection. Examples include mechanical recordings (e.g. dash cam footage), lists of ingredients and instructions for recipes, common geometric shapes or familiar symbols, and works consisting of commonly known information or facts.

3️⃣ Unconscious Copying and Ambient Influence: If you're working in a niche with influential voices, it's important to be mindful of subconscious copying or ambient influence. Though unintentional, unconscious copying can still lead to copyright infringement. Being aware of your influences and making sure you have your own voice can help maintain the originality of your work.

🔗 Dive into the full episode and get expert insights on copyrightability by tuning in to the Hourly to Exit Podcast. Don't forget to check out our sponsors at Think Beyond IP for valuable resources on building sustainable revenue streams through intellectual property.

Stay tuned for the next episode, where we'll explore derivatives and adaptations!

Connect with Erin to learn how to use intellectual property to increase your income and impact. hourlytoexit.com/podcast.

Erin's LinkedIn Page: https://www.linkedin.com/in/erinaustin/

Think Beyond IP YouTube Page: https://www.youtube.com/channel/UCVztXnDYnZ83oIb-EGX9IGA/videos

Music credit: Yes She Can by Tiny Music

A Team Dklutr production

Transcript
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Uh, ladies.

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Welcome to this week's episode

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of the Hourly to Exit podcast.

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I am starting a new series

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about copyrightability.

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As you know, U.

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S.

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copyright law protects

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original works of authorship.

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The works that qualify

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are referred to as

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being copyrightable.

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So this series will

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focus on what makes

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a work copyrightable.

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This will be a

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three part series.

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This part one will

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be about originality.

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Part two will be about

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derivatives and part

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three will be about public

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domain and related issues.

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So to start with originality,

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it was born from a

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workshop experience where

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we were going over my.

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is your expertise

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copyrightable assessment

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and there are so many

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questions about originality

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that I knew I had to

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explain it a bit more.

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So, starting with the U.

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S.

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Supreme Court

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regarding originality.

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The Supreme Court said that

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the originality requirement

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means only that the work was

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independently created by the

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author, as opposed to copied

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from other works, and that

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it possesses at least some

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minimal degree of creativity.

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So, originality has Two

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elements 1st independence,

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the work must be created

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without directly copying

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or adapting from another

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source and creativity.

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And this is a very

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basic threshold.

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a lot of questions about, how

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unique does it need to be?

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what if?

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something I've been thinking

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about for years and other

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people have written about it.

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Also, it's not about artistic

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merit and is not about

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how innovative it is, the,

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you can write about some

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same old standard ideas

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about, how to train a dog.

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But the way that you write

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about it, the way that

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you talk about it, the

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way that you illustrate

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it has to be original.

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So that's the creativity is

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really about, not copying.

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Right?

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Still kind of the same way of.

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Talking about originality,

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derivatives, we'll get their

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own episode derivatives

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are works that are

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adaptations or modifications

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of preexisting works.

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So that's not what we're

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talking about today.

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We're talking about

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independent creation.

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So.

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I'm going to flip the order

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that I talk about it though.

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We talked about independent

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creativity, independent

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creation with a minimum

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degree of creativity.

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I'm going to talk about the

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minimum degree of creativity

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first and then close it

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out with the independence.

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So because the threshold

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for creativity is.

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So low, minimal degree of

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creativity, I think it'll

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be really helpful talk

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about a few examples of what

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doesn't meet the threshold.

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And just remember, as

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I talk about these,

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these are just examples.

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There's no way, of course, I

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could provide an exhaustive

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list, but this is for you

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to help you think about.

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Honestly, like, how low

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the bar is, but that if

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you don't meet that bar,

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then, that's probably not

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something that would meet the

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copyright ability standards.

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All right, so 1st, when

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no creativity is involved

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in footage or photograph,

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I just like to talk about

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this 1 because, lot of

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people have ring cameras or

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dash cams and, you is what

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is recorded copyrightable

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and this is an example of

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a mechanical recording,

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for that ring camera.

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It's a preposition device.

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your dash cam.

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also, you put it there

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and then you drive around

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and go about your day

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and you aren't composing

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shots with your dash cam.

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You're not composing shots

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with your ring camera.

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so generally, and I'll use

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some squishy terms, like

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generally and probably

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and maybe a night because

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obviously everything is.

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specific, but generally,

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these preposition devices,

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where you're not, staging

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the shot are not going

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to meet the requisite

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threshold of originality.

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Now, that doesn't mean that

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footage is in the public

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domain, which we'll talk about

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in part 3, there will still

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be a protectable interest.

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Probably in that footage and

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people have rights to privacy.

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So anyone who appears in

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there, their license plates

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or their property and people

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have publicity rights.

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So, you know, you can't, make

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somebody an Internet star

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without their permission.

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There might be music in there.

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There might be, a store

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or something in there.

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So, that doesn't mean just

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because it was on a dash

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cam that there's no, nobody

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has any predictable rights.

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They might, but they're not

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probably not copyrightable

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list of ingredients and

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instructions, for recipe.

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You really can't separate

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the idea of the recipe kind

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of the non protectable.

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Parts of it, the ingredient

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list, the quantities,

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the basics of how to stir

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and how hot the oven is.

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the expression of the

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idea is copyrighted, but

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the idea itself isn't.

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But when all you have that

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expression is just kind of.

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Basically facts, you can't

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copyright quantities,

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ingredients, degrees of oven.

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So when you have a recipe

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book, I mean, you I'm sure

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or cookbook, I guess you

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didn't say you probably have

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some cookbooks on your shelf

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and you'll see that they

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have copyright protection.

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So the copyright doesn't.

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Apply to the recipe.

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It applies to all the little

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stories that go around it.

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you'll see if you go online

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and you look for recipe

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online and it's buried

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at the bottom of this

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story about the recipe.

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It's because the

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recipe itself.

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Is not protectable,

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but the story about

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it, is protectable.

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and, so that is, the reason

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for your frustration.

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If you're anything like

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me, I'm always frustrated

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when I'm trying to

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find the recipe online.

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Another thing that is not

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copyrightable something that's

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inevitable that different

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creators acting completely

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independently without any

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idea what the other person is

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doing would arrive at similar

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or even identical results,

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because there's just so many

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ways to express an idea.

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So this is something

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that's functional like

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writing about the rules

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of how to play checkers.

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How many ways are

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there to describe how

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to play checkers or.

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How to, train a dog, I mean,

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there's, could be something

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original about it, but there's

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some things that are just,

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2 independent people without

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even knowing the other exists

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and they're probably going to

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come up with the same content

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that is considered inevitable

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and probably not going to

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meet the, minimum standards of

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creativity, there is a French

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term called sends up there.

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So this refers to situations,

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characters, settings,

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or incidents that are

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standard or customary

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to a particular genre.

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And so those would

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not be protectable.

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for instance.

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You're writing

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a vampire novel.

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Your vampire

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sleeps in a casket.

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She doesn't go out at

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night, during the day, and

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she's afraid of garlic.

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Well, guess what?

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Those elements are

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not copyrightable.

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You can't put those things

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in your vampire novel, claim

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copyright protection for them,

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and nobody else can write

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about those things, right?

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So those standard situations,

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standard characteristics,

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those things that.

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You know, by nature of the

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genre of the, even if it's

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a fictional and highly

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creative, those elements that

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are the son's affair would

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not be protectable next.

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We have common geometric

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shapes are familiar symbols,

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like a stop sign or a smiley

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face or a piece symbol.

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They don't have the necessary

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level of originality.

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They're considered

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functional or utilitarian.

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And quite frankly, just

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too simple to get, the

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cover up protection.

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Sometimes you'll have

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a geographic shape.

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You'll see an outline of a

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country outline of the US.

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You'll see that people do

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an outline of a state or

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other natural formations.

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The outline of, A

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mountain, you know,

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Matterhorn or something.

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And so these are not the

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outlines, or even, whole

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painting of it, that would

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not be, but the original

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elements of it would be

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so the shape of the U.

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S.

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No, but if you then take

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it and paint it in a

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way that is creative.

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Then that would be, I

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see these cutting boards

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in this shape of the

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state, and then they, do

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some etchings on there.

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the shape of that cutting

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board and the shape of

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the state would not be

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copyrightable, but, the

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creative etchings that are on

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there, might be copyrightable.

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So it is the artistic

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expression that you layer

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on top of the symbol, Crazy

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looking smiley face or

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crazy looking piece of ball.

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that artistic expression,

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would be copyrightable,

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but not the symbol itself.

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And works in consisting

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entirely of commonly

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known information or facts

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that does not contain

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original authorship.

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So this would apply to

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say, a standard calendar,

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or a directory of people.

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So, when we look at calendars

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and you'll get 1 that has

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a copyright claim on it

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and that is because of

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all the, Photographs of,

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firefighters or whatever

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it is, or dogs pooping.

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I saw one recently

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calendar of dogs pooping

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and interesting places.

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so those elements are

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copywritable, but the calendar

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piece is not so, you know,

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I keep, myself organized by

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calendars that I download

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off the Internet that are

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just plain, just the numbers

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and the months and obviously

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those are not copyrightable

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a directory of names or

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facts might be copyrightable

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under certain circumstances,

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depending on some level of

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creativity that you add.

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So, something about

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the coordination or

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arrangement needs to be,

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creative now here, the

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standard of creativity.

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Will need to be a little

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higher than just the minimal

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because you're starting with

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facts that are commonly known.

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So if you want to get

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protection over facts that are

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commonly known, then you do

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need to do something that is

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kind of innovative in the way

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that you're presenting them.

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It can't just be that you

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hand wrote them, or something.

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so that unique expression

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or presentation.

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Of the information or facts or

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ideas that unique expression

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or presentation might be

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protectable, but not the

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underlying facts themselves.

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So those are some examples

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of what does not meet the

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minimum level of creativity.

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Use those to think about

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some others that are similar,

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that are just kind of common.

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And it's really hard

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to, allow someone to get

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exclusive rights that you

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get with copyright for

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these things that are just

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everywhere and common.

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And by the way, that

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doesn't mean publicly known.

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And we'll talk about that

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in public domain, episode.

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So, the fact that

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something's publicly known

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does not mean that it.

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Isn't creative all

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right now, we're going

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to the 2nd element,

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which is independence.

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So, when we're talking

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about independence, I'm

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going to assume that we are

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trying to create it without

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copying another source.

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That is our intent to

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create something original.

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We sat down at our computer.

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Started typing, and we believe

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that it is independent and

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that we didn't copy anyone.

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However, there's this

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thing called unconscious

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copying and that came up

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in my workshop as well.

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Like, well, what about there?

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All these people out

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there talking about

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all these things.

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How do I make sure

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that I don't, you know.

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and that is an issue.

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another term I liked,

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think it's a UK term.

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I just saw this on the

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internet and I couldn't

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find out more about it,

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but I really liked it.

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It's called ambient influence,

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which I think is also an

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interesting way to look

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at it, but unconscious

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copying, ambient influence,

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it does have implications

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under copyright law.

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it is, you know, what happens

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if you're unconsciously

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influenced by other

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people's work, especially

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something that's really

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influential in the field

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and their presence is,

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ambient, all over the place.

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Whenever we're talking about

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a certain area, that we may.

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engage in that person's

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work keeps popping up, it's

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hard to write about being

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brave without a little bit

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of Brene Brown sneaking in

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there or, you know, writing

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a daily email list, maybe

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you sound a little bit

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like Seth Godin, right?

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So, but the doctrine

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of subconscious copying

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does allow for liability

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without regard to the

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intent or knowledge.

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Of the copying.

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So even if the copying is

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unconscious, if it rises

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to the level of copyright

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infringement, and you'll need

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to go to the last series, I

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just did a three part series

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on copyright infringement.

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So, but if we have

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subconscious copying.

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And it rises to the level

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of a copyright infringement,

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then the fact that you

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did not intend Or didn't

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even realize that you're

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copying will not save you.

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So you can be on the hook for

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copying someone else's work,

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even if you honestly didn't

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mean to and didn't know it.

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so, the issue really is,

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in today's world, we're

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constantly bombarded

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with information online.

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And when this doctrine

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of subconscious copying,

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was created, it was

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a different world.

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We weren't constantly bombed.

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Barded with information

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all day, every day, in

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podcasts, you know, in our

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scrolling through our phone,

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everywhere we go, we're

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getting information from a

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lot of sources and that we

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may not even realize it.

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and so there has been

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a push against this

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doctrine, but the end of

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the day, it is, between.

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The unconscious copier

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and the person who has a

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valid copyright, who's in a

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better position to prevent

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it from happening again.

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We, in the previous series,

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we talk about what we can

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do as copyright owners.

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To minimize the possibility

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of somebody copying our

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work, but that applies

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to conscious copying.

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It doesn't apply.

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There's no way for

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us to protect against

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subconscious copying.

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So, between the 2,

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who is in the better

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position to prevent it?

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And at the end of the day,

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it is the person who may have

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subconsciously copied because

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it would be incredibly.

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easy to say, hey, you know, I

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thought I did it about myself.

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it's easy to say that and

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it'd be very difficult

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for the person who was, in

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fact, copied to prove that.

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No, You didn't it was

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conscious copying and not

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subconscious copying and so

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it kind of provide it would

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provide an offense that would

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be unfair to the person with

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the copyright protection.

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So what does that

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mean for you?

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So you need to be

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especially important.

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This is especially

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important for you.

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If you're in a niche that

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has just a handful of

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really prominent voices

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that basically most people

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recognize and so you

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need to make sure that.

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Their works don't seep

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into your subconscious when

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you're creating content.

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So be aware.

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There are these prominent

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voices, and I need to be

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aware that I'm not somehow

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subconsciously incorporating

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their voices and they do

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that by making sure that

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you have your own voice.

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Remember the ideas are

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freely available, You can

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talk about their ideas.

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You can talk about bravery.

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You can talk about, being

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unique and showing up and

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positioning and, niches and

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all the things and leadership,

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all the things that we hear

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from big voices all the time.

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You can take their ideas.

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Those are freely usable,

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but the expression

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needs to be original.

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So make sure that when you're

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writing about these things.

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That you are mindful that

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those prominent voices

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aren't seeping into your work

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because it is on you to make

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sure that doesn't have that.

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there are, some tools

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to make sure that you

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haven't done that.

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I noticed recently when I

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was doing spell check on

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something so this is in

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word that it had option to

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check if you find something

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on the Internet and I tried

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it just to see how it work.

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And frankly.

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Which.

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kept working and

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working and working and

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nothing ever happened.

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And so, you know, I

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don't have all day and

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I stopped using it.

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But, there are tools, if

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you are worried about that,

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there are tools to use that.

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You can make sure you

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haven't subconsciously

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copied something.

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and so, know it seems a little

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bit scary that you can be.

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Caught for subconscious

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copying, but want to emphasize

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the ideas are freely usable.

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So if you subconsciously take

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somebody's idea, it's okay.

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But if you subconsciously

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create a copyright

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infringement.

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Which means you've

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copied their work, you've

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copied their expression,

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then that is not okay.

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And we find this, frankly,

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we find that we don't

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find this so much in

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the work that we do.

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We know that this happens

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a lot in music because,

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for some kind of.

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beat or chord or thing

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to get into your brain.

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And then you sit down and

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write without realizing

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that you heard it somewhere.

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is a lot easier to do, than

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it is in the work that we do.

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so I don't want you to panic

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about it, but I do want

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you to be mindful of it.

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So, thank you for

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another episode.

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I do want to say that the

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Copyright Ability Series is

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sponsored by Think Beyond IP.

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Think Beyond IP helps B2B

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experts with corporate clients

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lay the intellectual property

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foundation required to build

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new scalable revenue streams.

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Think Beyond IP has the legal

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expertise and the corporate

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experience to provide expert

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focus to the issues that

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matter most to you and to

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your corporate clients.

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I encourage you to get

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your free assessment.

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Is your expertise

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copyrightable?

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You can get that

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at thinkbeyondip.

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com.

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I'll see you next time.

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Thanks guys.

About the Podcast

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Hourly to Exit

About your host

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Erin Austin

Meet Erin Austin, a Harvard Law alum with over 25 years of copyright and contracts experience. As the go-to advisor for professionals with corporate clients, Erin empowers entrepreneurs to be their own advocates, standing out for her commitment to transforming expertise into empires through the creation, protection and leveraging of intellectual property assets. Explore her blend of legal expertise and entrepreneurial insight on ThinkBeyondIP.com and the "Hourly to Exit" podcast. Off the clock, you'll find Erin in the great outdoors or connecting with business coaches to elevate 6-figure consultants into 7-figure powerhouses.