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Episode 72

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

🔍 Delving into the intricacies of copyright law - Join me on the Hourly to Exit podcast!

In the latest episode of the Hourly to Exit podcast, I had the pleasure of discussing copyrightability with a special focus on derivative works. We explored the boundaries between original content and derivative works, shedding light on fair use and the golden rule of copyrights.

Here are the key takeaways from the episode:

🔸 Derivative Works and Copyright: Derivative works involve creating new original content that incorporates aspects of preexisting copyrighted works. As a creator, it's crucial to understand the rights of the original copyright holder and seek permission when creating derivative works.

🔸 Fair Use: While fair use allows limited use of copyrighted material without permission, it's essential to recognize that fair use is a defense, not a license. This legal doctrine must be carefully navigated as there is no formula to follow to avoid copyright infringement.

🔸 Golden Rule of Copyrights: “If you didn't create it, then you don't own it, and you can't use it without permission.” Respecting the rights of other creators and seeking permission when utilizing their work is fundamental to operating within the boundaries of copyright law.

Tune in to the full podcast episode for a deep dive into copyrightability and the nuances of derivative works. Your understanding of copyright law will be transformed!

#CopyrightLaw #IntellectualProperty #PodcastDiscussion #HourlytoExit #DerivativeWorks #FairUse #CopyrightInfringement #LinkedInLearning

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
Speaker:

Hello, friends.

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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'm here with a another

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edition of the copyright

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ability series.

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This is part two of three.

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Last week, talked

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about the originality

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requirement in order for

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otter.

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ai Copyright laws, it

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has to be copyrightable.

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And one of those requirements

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is that the material

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needs to be original.

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And so last week, we

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talked about that.

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This week, we're going

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to talk about something

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that is related to

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originality, which is.

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Derivative derivative works

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and then next week we will

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talk about public domain

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materials and whether or

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not we can copyright those

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and how that relates to

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publicly available materials.

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I know there's a lot of

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confusion about that.

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Just so you know, I did

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a prior series about

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copyright infringement.

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So those were episodes 65,

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66, and 67, where I talked

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about, what constitutes a

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copyright infringement, how

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you can avoid accidentally

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infringing someone's copyright

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and steps you can take To

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minimize the possibility

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that you will be the victim

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of copyright infringement.

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So back to today,

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copyright ability with

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respect to derivatives.

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So I get questions like this.

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What makes something truly

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original versus derivative?

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We take so much from so

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many sources and develop

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our ideas from that.

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Another version of that

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is there are thousands of

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books on leadership and

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all of them do not have

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super original ideas.

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Is each book a

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copyrighted original?

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And so, I talk in depth

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about the original.

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and the originality standard

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in the prior episode, but

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briefly, the confusion when

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we use the term, original

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is that we think like, I'm

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an original and that means

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you're, absolutely unique

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and innovative and novel.

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And when we're talking about.

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originality in terms of

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copyright protection.

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It simply means that it

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was independently created

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that it is not copied.

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it is not that it is the

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most mind blowing original

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novel that anyone's ever

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expressed, but that it

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was independently created.

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And so.

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When we compare original

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versus derivative, think about

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derivative, on the other hand,

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is one of the rights that

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we have as copyright owners.

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So, briefly, when we are

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copyright owners, we have

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the exclusive rights to make

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copies, to distribute the

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work, to publicly perform the

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work, to publicly display the

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work, and to create derivative

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works from that work.

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creating derivative works

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is an exclusive right

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of the copyright owner.

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And so that's where this

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question comes from, can I be

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influenced by somebody else's

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work without, tripping into

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it being a derivative work?

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Just to get it out of the

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way, because I know you're

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all asking about it, I will

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start by having a brief

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conversation about fair use.

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So fair use is a legal

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doctrine that allows

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the limited use of

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copyrighted material

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without needing permission

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from the copyright owner.

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Remember, copyright ownership

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gives us exclusive rights.

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That means if somebody

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wants to do something

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with my copyrighted

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work, then they have to

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get permission from me.

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But fair use says there

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are limited circumstances

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where they can use your work

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without your permission.

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So basically, typically,

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and all these things are

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going to be generalizations.

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Of course, there's always

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going to be, fact specifics.

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But generally, when you're

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using fair use, you're taking

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that original work and you

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are, using it somehow, like,

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in commentary or, in, teaching

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or in education or research.

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and so it's not

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transformative nature of

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creating something new.

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It's about kind of taking.

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Your copyrighted work,

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some or all of it and using

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it, in a way that adding

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it to my thing in whole.

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So what we need to think

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about with fair use is that

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fair use is not a license.

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Because we're doing it

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without a license that is

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by definition, we are using

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that work without a license.

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So what it is, is it is a

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defense against a copyright

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infringement claim.

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So when we are relying on

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fair use, we are saying,

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I am going to use your

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copyrighted work without

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permission, because I think

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it falls under this exception

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to require permission.

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And that's all great.

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Unless you're the copyright

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owner disagrees with you.

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And chances are, if you

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hear from them, that means

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they disagree with you.

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They're not, checking in with

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you just to tell you what a

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brilliant job you did, maybe,

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but probably they're checking

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in with you because, hey.

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that's my work.

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You didn't ask me for

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permission and either, they

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want you to stop doing it

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or they want to be paid

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for it or maybe both.

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the only way to assert

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your fair use defense

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is in court, right?

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Cause that's what

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a defense is.

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So it is, coming

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back and saying.

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You're right.

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I used it.

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I didn't get permission,

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but I'm not infringing

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your copyright.

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And this is why and

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that is fact specific.

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And that means that you

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need to make your case

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that it is a fair use.

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People will ask, you know,

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well, is there a percentage?

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Is it 5 percent or 10%?

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And there's not

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a formula for it.

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Courts have consistently

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refused to say

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there's a formula.

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They have a framework for

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the court who's listening

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to it, to your case.

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To evaluate your facts, but

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they do not have a formula

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that you plug in and say,

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okay, I only took 1 page

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out of a 300 page novel.

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So it's 1, 300 and

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therefore it's for us.

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It's not, it could be the most

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important, maybe it's like

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the resolution of the entire.

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novel that you've taken

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like, is that fair use?

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Right?

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And so, fair use is user

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beware because there is no

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guarantee that you'll win.

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And even if you do, you've

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expended a fair amount of

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resources to get there.

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All right, so enough

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about fair use.

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I don't like fair use.

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So let's talk about

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derivative works.

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So again, a derivative work

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is a new original work that

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includes aspects of a pre

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existing copyrighted work.

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to create a derivative

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work, you need permission

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of the copyright.

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Holder.

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Remember the right to

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create derivative work is

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an exclusive right held

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by the copyright owner.

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So you need to get

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that right from the

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copyright owner, right?

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And so derivative works

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include things like sequels or

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adaptations or translations.

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So something where

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you're taking.

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That original work pre

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existing copyrighted work,

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like a book, and you are

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adding some new elements

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to it, like a new language

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or making it a sequel or

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turning a book into a movie,

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and so that new work, the

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derivative work is also

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eligible for copyright

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protection, except if you

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don't have the right to use To

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create that derivative work.

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I don't care how original

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what you did like you create

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a sequel to Harry Potter.

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I don't care how

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original it is.

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If you don't have permission

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to create that sequel, then

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even the original parts

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of that are not eligible

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for copyright protection.

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All right.

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So, just to compare fair use.

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Versus derivative use, you

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know, that fair use is kind

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of taking some portion.

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I'm taking some portion

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of the Harry Potter book,

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and I'm putting it into

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some sort of, slide show

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that I'm creating, or I am

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having commentary about, the

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portrayal of, people with

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glasses in popular culture,

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or something versus taking.

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Harry Potter and

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creating a new work

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based on Harry Potter.

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All right.

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So if we get back to that

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question, what makes something

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original versus derivative?

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Well, that isn't the

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right question to ask.

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And for a couple of reasons,

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one, it suggests that there is

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some kind of continuum between

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original and derivative.

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Like we started, once and it's

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For me on the left, because I

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go left to right is something

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completely original right with

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not copying or using any 3rd

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party material of any kind.

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we kind of go and yeah, we

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corporate a little bit that

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I got from someone else.

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So it's mostly original.

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I'm having a

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little bit or it's.

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my idea, but I've

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incorporated some stuff

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from some other people.

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So it's, a little

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less original.

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Right.

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And then at some point, as

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I continue to incorporate

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somebody else's stuff, it

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flips over into derivative

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and it doesn't work like that.

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copying is very.

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Binary.

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So either it's

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original or it's not.

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So if you've copied anything

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from somebody else and by

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copying, I literally mean

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copying, then it doesn't

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matter how small it is.

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It's not original.

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And derivative is a

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separate right under

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copyright law than copying.

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Remember copying is its

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own standalone, right?

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Under copyright law and

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creating derivative works

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is its own standalone

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right under copyright law.

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If it were the same thing,

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there would be two of them.

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They're different.

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And so someone can create

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a derivative without

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actually copying anything.

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So, let's take Harry Potter.

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If I don't copy a single word

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out of a, Rowling's, book.

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But I...

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create a novel that is

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based on a, boy wizard who,

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fought an evil Lord and

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survived, death as an infant.

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but I've not copied

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anything from the novel.

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And I create a new

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series based on that.

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I have, infringed on her

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JK Rawlings right to create

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derivative works based on

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her Harry Potter novels, even

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though I have not literally

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copied any part of her novel.

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this is where it gets tricky,

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which is, are we taking an

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idea which is permissible?

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We cannot copyright ideas.

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Versus have we taken so

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much of an idea that is

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unique, like a boy wizard

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he was almost killed as an

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infant who defeats a Lord.

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And created something

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that trips us into

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being a derivative.

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And so there is a continuum

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there, not between how much

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is copied and how much is

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derivative, but there's

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a continuum between the

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nature of the idea that

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you're taking and whether

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or not you're using it to

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create a derivative from it.

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I think it's

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fairly easy to see.

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Please let me know if it's

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not, when we look at literary

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fiction example, like Harry

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Potter versus what we do

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and what we do every day.

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And so, when we are influenced

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and create our expertise,

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you know, we are taking

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in ideas all the time

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and we are incorporating

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them into our work.

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We are improving upon them.

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We are seeing them

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from new ways.

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We're writing about it.

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there's not align.

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There's not a bright line

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where it's idea idea idea.

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I'm taking an idea idea and

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then it becomes a derivative.

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So that's what's kind of,

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that it depends part so

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much of legal analysis.

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That it really does depend

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on the circumstances.

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So the question about

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leadership books, for

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instance, there are a lot

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of leadership books and

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there are lots of generic

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leadership skills that we

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learn throughout our careers.

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And so if we're talking about,

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you the way to build culture

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and, you to lead by example

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and reward the behaviors you

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want to see and things like

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that that are considered

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generally Generic leadership

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skills, and for me to write

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about that, even though I

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read it in somebody else's

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book is without copying, but

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taking the ideas about how

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to build leadership skills

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is working with an idea,

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but let's say someone has.

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Written about, some very

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innovative, very distinctive

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leadership skills that

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everyone immediately knows.

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I wish I had a good example

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a real life example of

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someone who does something

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radically different in order

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to, create leadership skills.

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and I can't even say,

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like, going out in

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wilderness things.

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I know that the people who

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do that, but someone who does

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something radically different.

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Now, for you to take that

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idea, even though you

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don't copy the words from

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their book, but you take

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their radically different

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way of teaching leadership

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skills and you use them to

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create your own training

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program, that starts to

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look like a derivative work.

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And I say it looks like

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it because it really would

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need more analysis to know

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exactly whether or not you

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create a derivative work.

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And, to make an analogy

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that maybe will help

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also drive this home.

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if we think about, sent

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a fair in literature.

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it is a French term that

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refers to the situations,

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characters, settings, or

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incidents that are standard

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or customary in a particular

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genre, and therefore

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they aren't protectable.

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So, scenes d'affaires

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are not protectable

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under copyright law.

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So examples of that would be,

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in a vampire movie, that the

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vampire sleeps in a casket and

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they can't go out during the

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day and they don't eat garlic

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or are afraid of garlic.

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Those aren't protectable

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elements, but if you have

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a vampire who, travels to

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the dark side of the moon

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or to get away from the

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sun, that is not even that

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would not qualify as a

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sense of air and it would

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be protectable that concept.

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Even if you don't, copy

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the words from that novel,

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but if you take the concept

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of a vampire that travels

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to the dark side of the

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moon, Maybe there's a lot

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of books out there with

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that, but, you it may be

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that would be derivative.

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Right?

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And so it is nuanced.

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There is not a bright line

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like fair use something

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you're taking 1 of these

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non literary features.

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Like, you're not literally

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copying, but you're using.

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some distinctive and

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protectable elements of the

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original work and so that

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people would identify your

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work with the other work.

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someone mentioned

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this that if.

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a normal person read your

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work and they assumed that

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it was based on some other

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known person's work, then

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probably it is a derivative.

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that is just if we

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wanted to have some

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kind of really rough.

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Test that would be like, would

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it just kind of the ordinary

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person go, Oh, this must

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be, based on, Harry Potter,

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because this kid's got, a

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lightning scar on his head.

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All right, that is the best

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we can do without looking at

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the specific circumstances.

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that brings us to,

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okay, how do I.

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Navigate, the fact that

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I'm out here in the world

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consuming information

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from all over the place.

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And I'd like to leave

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you with what we call the

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golden rule of copyrights

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And that is if you

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didn't create it.

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Then you don't own it

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and you can't use it

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without permission.

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And so that is kind of

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the fundamental principle

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of copyright law, which

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is to protect the rights

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of the creators, that the

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right that the creator

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has over their original

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work, it grants exclusive

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rights to the creator.

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when we are in the

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expertise-based business.

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our inventory is copyrighted

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works generally when we

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are creating deliverables

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for our clients.

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Generally that is a

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copyrighted work when we

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are delivering a program,

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you know, a training, that's

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generally a copyrighted work.

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Typically.

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what work trade is, is the

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delivery of copyrighted works.

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so I'll call that

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our inventory.

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When when we create

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inventory, that means we

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need raw materials, right?

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We need to get in order

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to create inventory.

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We need raw materials.

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And some of that will

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come from us from just our

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experiences in the world, from

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the certifications that we've

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received that, maybe a prior

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job and some things that we

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read some books that we read

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some courses that we took.

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And those are all things

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that are raw materials in

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creating our inventory, but

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all of those things when

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we are experts are also

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copyrighted works being.

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That is somebody else's

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property when we are

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taking, parts of somebody's,

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course, or parts of

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somebody's book or, parts

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of somebody else's training.

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And so we should no longer.

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Expect to receive for free

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the raw materials to create

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our inventory than a car

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manufacturer would expect

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to receive for free the raw

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materials to create their

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inventory, which is cars

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just because our inventory

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is intellectual and the raw

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materials are intellectual

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does not mean it isn't a real.

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Asset with value with

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a owner who has a right

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to be paid for it.

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So that would be the golden

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rule of copyrights and that

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is mutual when we build a

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culture of, the golden rule

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of copyright, people are

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respecting your rights as

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a creator and you respect

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their rights as a creator.

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And so, not that I think

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that anyone is doing

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anything, they're trying

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to intentionally infringe

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on anyone's copyright.

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But this is where we get into

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that unintentional copyright

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infringement territory when

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we are trying to parse, what

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percentage is somebody's

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material I can use to you.

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So the Copyright Ability

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Series is sponsored

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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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And also please check

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out thinkbeyondip.

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com to get your free

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assessment is your

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expertise copyrightable.

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All right.

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Thanks again.

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See you next time.

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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.