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
Uh, ladies.
Speaker:Welcome to this week's episode
Speaker:of the Hourly to Exit podcast.
Speaker:I am starting a new series
Speaker:about copyrightability.
Speaker:As you know, U.
Speaker:S.
Speaker:copyright law protects
Speaker:original works of authorship.
Speaker:The works that qualify
Speaker:are referred to as
Speaker:being copyrightable.
Speaker:So this series will
Speaker:focus on what makes
Speaker:a work copyrightable.
Speaker:This will be a
Speaker:three part series.
Speaker:This part one will
Speaker:be about originality.
Speaker:Part two will be about
Speaker:derivatives and part
Speaker:three will be about public
Speaker:domain and related issues.
Speaker:So to start with originality,
Speaker:it was born from a
Speaker:workshop experience where
Speaker:we were going over my.
Speaker:is your expertise
Speaker:copyrightable assessment
Speaker:and there are so many
Speaker:questions about originality
Speaker:that I knew I had to
Speaker:explain it a bit more.
Speaker:So, starting with the U.
Speaker:S.
Speaker:Supreme Court
Speaker:regarding originality.
Speaker:The Supreme Court said that
Speaker:the originality requirement
Speaker:means only that the work was
Speaker:independently created by the
Speaker:author, as opposed to copied
Speaker:from other works, and that
Speaker:it possesses at least some
Speaker:minimal degree of creativity.
Speaker:So, originality has Two
Speaker:elements 1st independence,
Speaker:the work must be created
Speaker:without directly copying
Speaker:or adapting from another
Speaker:source and creativity.
Speaker:And this is a very
Speaker:basic threshold.
Speaker:a lot of questions about, how
Speaker:unique does it need to be?
Speaker:what if?
Speaker:something I've been thinking
Speaker:about for years and other
Speaker:people have written about it.
Speaker:Also, it's not about artistic
Speaker:merit and is not about
Speaker:how innovative it is, the,
Speaker:you can write about some
Speaker:same old standard ideas
Speaker:about, how to train a dog.
Speaker:But the way that you write
Speaker:about it, the way that
Speaker:you talk about it, the
Speaker:way that you illustrate
Speaker:it has to be original.
Speaker:So that's the creativity is
Speaker:really about, not copying.
Speaker:Right?
Speaker:Still kind of the same way of.
Speaker:Talking about originality,
Speaker:derivatives, we'll get their
Speaker:own episode derivatives
Speaker:are works that are
Speaker:adaptations or modifications
Speaker:of preexisting works.
Speaker:So that's not what we're
Speaker:talking about today.
Speaker:We're talking about
Speaker:independent creation.
Speaker:So.
Speaker:I'm going to flip the order
Speaker:that I talk about it though.
Speaker:We talked about independent
Speaker:creativity, independent
Speaker:creation with a minimum
Speaker:degree of creativity.
Speaker:I'm going to talk about the
Speaker:minimum degree of creativity
Speaker:first and then close it
Speaker:out with the independence.
Speaker:So because the threshold
Speaker:for creativity is.
Speaker:So low, minimal degree of
Speaker:creativity, I think it'll
Speaker:be really helpful talk
Speaker:about a few examples of what
Speaker:doesn't meet the threshold.
Speaker:And just remember, as
Speaker:I talk about these,
Speaker:these are just examples.
Speaker:There's no way, of course, I
Speaker:could provide an exhaustive
Speaker:list, but this is for you
Speaker:to help you think about.
Speaker:Honestly, like, how low
Speaker:the bar is, but that if
Speaker:you don't meet that bar,
Speaker:then, that's probably not
Speaker:something that would meet the
Speaker:copyright ability standards.
Speaker:All right, so 1st, when
Speaker:no creativity is involved
Speaker:in footage or photograph,
Speaker:I just like to talk about
Speaker:this 1 because, lot of
Speaker:people have ring cameras or
Speaker:dash cams and, you is what
Speaker:is recorded copyrightable
Speaker:and this is an example of
Speaker:a mechanical recording,
Speaker:for that ring camera.
Speaker:It's a preposition device.
Speaker:your dash cam.
Speaker:also, you put it there
Speaker:and then you drive around
Speaker:and go about your day
Speaker:and you aren't composing
Speaker:shots with your dash cam.
Speaker:You're not composing shots
Speaker:with your ring camera.
Speaker:so generally, and I'll use
Speaker:some squishy terms, like
Speaker:generally and probably
Speaker:and maybe a night because
Speaker:obviously everything is.
Speaker:specific, but generally,
Speaker:these preposition devices,
Speaker:where you're not, staging
Speaker:the shot are not going
Speaker:to meet the requisite
Speaker:threshold of originality.
Speaker:Now, that doesn't mean that
Speaker:footage is in the public
Speaker:domain, which we'll talk about
Speaker:in part 3, there will still
Speaker:be a protectable interest.
Speaker:Probably in that footage and
Speaker:people have rights to privacy.
Speaker:So anyone who appears in
Speaker:there, their license plates
Speaker:or their property and people
Speaker:have publicity rights.
Speaker:So, you know, you can't, make
Speaker:somebody an Internet star
Speaker:without their permission.
Speaker:There might be music in there.
Speaker:There might be, a store
Speaker:or something in there.
Speaker:So, that doesn't mean just
Speaker:because it was on a dash
Speaker:cam that there's no, nobody
Speaker:has any predictable rights.
Speaker:They might, but they're not
Speaker:probably not copyrightable
Speaker:list of ingredients and
Speaker:instructions, for recipe.
Speaker:You really can't separate
Speaker:the idea of the recipe kind
Speaker:of the non protectable.
Speaker:Parts of it, the ingredient
Speaker:list, the quantities,
Speaker:the basics of how to stir
Speaker:and how hot the oven is.
Speaker:the expression of the
Speaker:idea is copyrighted, but
Speaker:the idea itself isn't.
Speaker:But when all you have that
Speaker:expression is just kind of.
Speaker:Basically facts, you can't
Speaker:copyright quantities,
Speaker:ingredients, degrees of oven.
Speaker:So when you have a recipe
Speaker:book, I mean, you I'm sure
Speaker:or cookbook, I guess you
Speaker:didn't say you probably have
Speaker:some cookbooks on your shelf
Speaker:and you'll see that they
Speaker:have copyright protection.
Speaker:So the copyright doesn't.
Speaker:Apply to the recipe.
Speaker:It applies to all the little
Speaker:stories that go around it.
Speaker:you'll see if you go online
Speaker:and you look for recipe
Speaker:online and it's buried
Speaker:at the bottom of this
Speaker:story about the recipe.
Speaker:It's because the
Speaker:recipe itself.
Speaker:Is not protectable,
Speaker:but the story about
Speaker:it, is protectable.
Speaker:and, so that is, the reason
Speaker:for your frustration.
Speaker:If you're anything like
Speaker:me, I'm always frustrated
Speaker:when I'm trying to
Speaker:find the recipe online.
Speaker:Another thing that is not
Speaker:copyrightable something that's
Speaker:inevitable that different
Speaker:creators acting completely
Speaker:independently without any
Speaker:idea what the other person is
Speaker:doing would arrive at similar
Speaker:or even identical results,
Speaker:because there's just so many
Speaker:ways to express an idea.
Speaker:So this is something
Speaker:that's functional like
Speaker:writing about the rules
Speaker:of how to play checkers.
Speaker:How many ways are
Speaker:there to describe how
Speaker:to play checkers or.
Speaker:How to, train a dog, I mean,
Speaker:there's, could be something
Speaker:original about it, but there's
Speaker:some things that are just,
Speaker:2 independent people without
Speaker:even knowing the other exists
Speaker:and they're probably going to
Speaker:come up with the same content
Speaker:that is considered inevitable
Speaker:and probably not going to
Speaker:meet the, minimum standards of
Speaker:creativity, there is a French
Speaker:term called sends up there.
Speaker:So this refers to situations,
Speaker:characters, settings,
Speaker:or incidents that are
Speaker:standard or customary
Speaker:to a particular genre.
Speaker:And so those would
Speaker:not be protectable.
Speaker:for instance.
Speaker:You're writing
Speaker:a vampire novel.
Speaker:Your vampire
Speaker:sleeps in a casket.
Speaker:She doesn't go out at
Speaker:night, during the day, and
Speaker:she's afraid of garlic.
Speaker:Well, guess what?
Speaker:Those elements are
Speaker:not copyrightable.
Speaker:You can't put those things
Speaker:in your vampire novel, claim
Speaker:copyright protection for them,
Speaker:and nobody else can write
Speaker:about those things, right?
Speaker:So those standard situations,
Speaker:standard characteristics,
Speaker:those things that.
Speaker:You know, by nature of the
Speaker:genre of the, even if it's
Speaker:a fictional and highly
Speaker:creative, those elements that
Speaker:are the son's affair would
Speaker:not be protectable next.
Speaker:We have common geometric
Speaker:shapes are familiar symbols,
Speaker:like a stop sign or a smiley
Speaker:face or a piece symbol.
Speaker:They don't have the necessary
Speaker:level of originality.
Speaker:They're considered
Speaker:functional or utilitarian.
Speaker:And quite frankly, just
Speaker:too simple to get, the
Speaker:cover up protection.
Speaker:Sometimes you'll have
Speaker:a geographic shape.
Speaker:You'll see an outline of a
Speaker:country outline of the US.
Speaker:You'll see that people do
Speaker:an outline of a state or
Speaker:other natural formations.
Speaker:The outline of, A
Speaker:mountain, you know,
Speaker:Matterhorn or something.
Speaker:And so these are not the
Speaker:outlines, or even, whole
Speaker:painting of it, that would
Speaker:not be, but the original
Speaker:elements of it would be
Speaker:so the shape of the U.
Speaker:S.
Speaker:No, but if you then take
Speaker:it and paint it in a
Speaker:way that is creative.
Speaker:Then that would be, I
Speaker:see these cutting boards
Speaker:in this shape of the
Speaker:state, and then they, do
Speaker:some etchings on there.
Speaker:the shape of that cutting
Speaker:board and the shape of
Speaker:the state would not be
Speaker:copyrightable, but, the
Speaker:creative etchings that are on
Speaker:there, might be copyrightable.
Speaker:So it is the artistic
Speaker:expression that you layer
Speaker:on top of the symbol, Crazy
Speaker:looking smiley face or
Speaker:crazy looking piece of ball.
Speaker:that artistic expression,
Speaker:would be copyrightable,
Speaker:but not the symbol itself.
Speaker:And works in consisting
Speaker:entirely of commonly
Speaker:known information or facts
Speaker:that does not contain
Speaker:original authorship.
Speaker:So this would apply to
Speaker:say, a standard calendar,
Speaker:or a directory of people.
Speaker:So, when we look at calendars
Speaker:and you'll get 1 that has
Speaker:a copyright claim on it
Speaker:and that is because of
Speaker:all the, Photographs of,
Speaker:firefighters or whatever
Speaker:it is, or dogs pooping.
Speaker:I saw one recently
Speaker:calendar of dogs pooping
Speaker:and interesting places.
Speaker:so those elements are
Speaker:copywritable, but the calendar
Speaker:piece is not so, you know,
Speaker:I keep, myself organized by
Speaker:calendars that I download
Speaker:off the Internet that are
Speaker:just plain, just the numbers
Speaker:and the months and obviously
Speaker:those are not copyrightable
Speaker:a directory of names or
Speaker:facts might be copyrightable
Speaker:under certain circumstances,
Speaker:depending on some level of
Speaker:creativity that you add.
Speaker:So, something about
Speaker:the coordination or
Speaker:arrangement needs to be,
Speaker:creative now here, the
Speaker:standard of creativity.
Speaker:Will need to be a little
Speaker:higher than just the minimal
Speaker:because you're starting with
Speaker:facts that are commonly known.
Speaker:So if you want to get
Speaker:protection over facts that are
Speaker:commonly known, then you do
Speaker:need to do something that is
Speaker:kind of innovative in the way
Speaker:that you're presenting them.
Speaker:It can't just be that you
Speaker:hand wrote them, or something.
Speaker:so that unique expression
Speaker:or presentation.
Speaker:Of the information or facts or
Speaker:ideas that unique expression
Speaker:or presentation might be
Speaker:protectable, but not the
Speaker:underlying facts themselves.
Speaker:So those are some examples
Speaker:of what does not meet the
Speaker:minimum level of creativity.
Speaker:Use those to think about
Speaker:some others that are similar,
Speaker:that are just kind of common.
Speaker:And it's really hard
Speaker:to, allow someone to get
Speaker:exclusive rights that you
Speaker:get with copyright for
Speaker:these things that are just
Speaker:everywhere and common.
Speaker:And by the way, that
Speaker:doesn't mean publicly known.
Speaker:And we'll talk about that
Speaker:in public domain, episode.
Speaker:So, the fact that
Speaker:something's publicly known
Speaker:does not mean that it.
Speaker:Isn't creative all
Speaker:right now, we're going
Speaker:to the 2nd element,
Speaker:which is independence.
Speaker:So, when we're talking
Speaker:about independence, I'm
Speaker:going to assume that we are
Speaker:trying to create it without
Speaker:copying another source.
Speaker:That is our intent to
Speaker:create something original.
Speaker:We sat down at our computer.
Speaker:Started typing, and we believe
Speaker:that it is independent and
Speaker:that we didn't copy anyone.
Speaker:However, there's this
Speaker:thing called unconscious
Speaker:copying and that came up
Speaker:in my workshop as well.
Speaker:Like, well, what about there?
Speaker:All these people out
Speaker:there talking about
Speaker:all these things.
Speaker:How do I make sure
Speaker:that I don't, you know.
Speaker:and that is an issue.
Speaker:another term I liked,
Speaker:think it's a UK term.
Speaker:I just saw this on the
Speaker:internet and I couldn't
Speaker:find out more about it,
Speaker:but I really liked it.
Speaker:It's called ambient influence,
Speaker:which I think is also an
Speaker:interesting way to look
Speaker:at it, but unconscious
Speaker:copying, ambient influence,
Speaker:it does have implications
Speaker:under copyright law.
Speaker:it is, you know, what happens
Speaker:if you're unconsciously
Speaker:influenced by other
Speaker:people's work, especially
Speaker:something that's really
Speaker:influential in the field
Speaker:and their presence is,
Speaker:ambient, all over the place.
Speaker:Whenever we're talking about
Speaker:a certain area, that we may.
Speaker:engage in that person's
Speaker:work keeps popping up, it's
Speaker:hard to write about being
Speaker:brave without a little bit
Speaker:of Brene Brown sneaking in
Speaker:there or, you know, writing
Speaker:a daily email list, maybe
Speaker:you sound a little bit
Speaker:like Seth Godin, right?
Speaker:So, but the doctrine
Speaker:of subconscious copying
Speaker:does allow for liability
Speaker:without regard to the
Speaker:intent or knowledge.
Speaker:Of the copying.
Speaker:So even if the copying is
Speaker:unconscious, if it rises
Speaker:to the level of copyright
Speaker:infringement, and you'll need
Speaker:to go to the last series, I
Speaker:just did a three part series
Speaker:on copyright infringement.
Speaker:So, but if we have
Speaker:subconscious copying.
Speaker:And it rises to the level
Speaker:of a copyright infringement,
Speaker:then the fact that you
Speaker:did not intend Or didn't
Speaker:even realize that you're
Speaker:copying will not save you.
Speaker:So you can be on the hook for
Speaker:copying someone else's work,
Speaker:even if you honestly didn't
Speaker:mean to and didn't know it.
Speaker:so, the issue really is,
Speaker:in today's world, we're
Speaker:constantly bombarded
Speaker:with information online.
Speaker:And when this doctrine
Speaker:of subconscious copying,
Speaker:was created, it was
Speaker:a different world.
Speaker:We weren't constantly bombed.
Speaker:Barded with information
Speaker:all day, every day, in
Speaker:podcasts, you know, in our
Speaker:scrolling through our phone,
Speaker:everywhere we go, we're
Speaker:getting information from a
Speaker:lot of sources and that we
Speaker:may not even realize it.
Speaker:and so there has been
Speaker:a push against this
Speaker:doctrine, but the end of
Speaker:the day, it is, between.
Speaker:The unconscious copier
Speaker:and the person who has a
Speaker:valid copyright, who's in a
Speaker:better position to prevent
Speaker:it from happening again.
Speaker:We, in the previous series,
Speaker:we talk about what we can
Speaker:do as copyright owners.
Speaker:To minimize the possibility
Speaker:of somebody copying our
Speaker:work, but that applies
Speaker:to conscious copying.
Speaker:It doesn't apply.
Speaker:There's no way for
Speaker:us to protect against
Speaker:subconscious copying.
Speaker:So, between the 2,
Speaker:who is in the better
Speaker:position to prevent it?
Speaker:And at the end of the day,
Speaker:it is the person who may have
Speaker:subconsciously copied because
Speaker:it would be incredibly.
Speaker:easy to say, hey, you know, I
Speaker:thought I did it about myself.
Speaker:it's easy to say that and
Speaker:it'd be very difficult
Speaker:for the person who was, in
Speaker:fact, copied to prove that.
Speaker:No, You didn't it was
Speaker:conscious copying and not
Speaker:subconscious copying and so
Speaker:it kind of provide it would
Speaker:provide an offense that would
Speaker:be unfair to the person with
Speaker:the copyright protection.
Speaker:So what does that
Speaker:mean for you?
Speaker:So you need to be
Speaker:especially important.
Speaker:This is especially
Speaker:important for you.
Speaker:If you're in a niche that
Speaker:has just a handful of
Speaker:really prominent voices
Speaker:that basically most people
Speaker:recognize and so you
Speaker:need to make sure that.
Speaker:Their works don't seep
Speaker:into your subconscious when
Speaker:you're creating content.
Speaker:So be aware.
Speaker:There are these prominent
Speaker:voices, and I need to be
Speaker:aware that I'm not somehow
Speaker:subconsciously incorporating
Speaker:their voices and they do
Speaker:that by making sure that
Speaker:you have your own voice.
Speaker:Remember the ideas are
Speaker:freely available, You can
Speaker:talk about their ideas.
Speaker:You can talk about bravery.
Speaker:You can talk about, being
Speaker:unique and showing up and
Speaker:positioning and, niches and
Speaker:all the things and leadership,
Speaker:all the things that we hear
Speaker:from big voices all the time.
Speaker:You can take their ideas.
Speaker:Those are freely usable,
Speaker:but the expression
Speaker:needs to be original.
Speaker:So make sure that when you're
Speaker:writing about these things.
Speaker:That you are mindful that
Speaker:those prominent voices
Speaker:aren't seeping into your work
Speaker:because it is on you to make
Speaker:sure that doesn't have that.
Speaker:there are, some tools
Speaker:to make sure that you
Speaker:haven't done that.
Speaker:I noticed recently when I
Speaker:was doing spell check on
Speaker:something so this is in
Speaker:word that it had option to
Speaker:check if you find something
Speaker:on the Internet and I tried
Speaker:it just to see how it work.
Speaker:And frankly.
Speaker:Which.
Speaker:kept working and
Speaker:working and working and
Speaker:nothing ever happened.
Speaker:And so, you know, I
Speaker:don't have all day and
Speaker:I stopped using it.
Speaker:But, there are tools, if
Speaker:you are worried about that,
Speaker:there are tools to use that.
Speaker:You can make sure you
Speaker:haven't subconsciously
Speaker:copied something.
Speaker:and so, know it seems a little
Speaker:bit scary that you can be.
Speaker:Caught for subconscious
Speaker:copying, but want to emphasize
Speaker:the ideas are freely usable.
Speaker:So if you subconsciously take
Speaker:somebody's idea, it's okay.
Speaker:But if you subconsciously
Speaker:create a copyright
Speaker:infringement.
Speaker:Which means you've
Speaker:copied their work, you've
Speaker:copied their expression,
Speaker:then that is not okay.
Speaker:And we find this, frankly,
Speaker:we find that we don't
Speaker:find this so much in
Speaker:the work that we do.
Speaker:We know that this happens
Speaker:a lot in music because,
Speaker:for some kind of.
Speaker:beat or chord or thing
Speaker:to get into your brain.
Speaker:And then you sit down and
Speaker:write without realizing
Speaker:that you heard it somewhere.
Speaker:is a lot easier to do, than
Speaker:it is in the work that we do.
Speaker:so I don't want you to panic
Speaker:about it, but I do want
Speaker:you to be mindful of it.
Speaker:So, thank you for
Speaker:another episode.
Speaker:I do want to say that the
Speaker:Copyright Ability Series is
Speaker:sponsored by Think Beyond IP.
Speaker:Think Beyond IP helps B2B
Speaker:experts with corporate clients
Speaker:lay the intellectual property
Speaker:foundation required to build
Speaker:new scalable revenue streams.
Speaker:Think Beyond IP has the legal
Speaker:expertise and the corporate
Speaker:experience to provide expert
Speaker:focus to the issues that
Speaker:matter most to you and to
Speaker:your corporate clients.
Speaker:I encourage you to get
Speaker:your free assessment.
Speaker:Is your expertise
Speaker:copyrightable?
Speaker:You can get that
Speaker:at thinkbeyondip.
Speaker:com.
Speaker:I'll see you next time.
Speaker:Thanks guys.
