EPS 71 - The Copyrightability Series–Part 1: Delving into the Elements of Originality and Independence Transcript

Erin Austin: Uh, ladies. Welcome to this week's episode of the Hourly to Exit podcast. I am starting a new series about copyrightability. As you know, U. S. copyright law protects original works of authorship. The works that qualify are referred to as being copyrightable. So this series will focus on what makes a work copyrightable.

Erin Austin: This will be a three part series. This part one will be about originality. Part two will be about derivatives and part three will be about public domain and related issues. So to start with originality, it was born from a workshop experience where we were going over my. Uh, is your expertise copyrightable assessment and there are so many questions about originality that I knew I had to explain it a bit more.

Erin Austin: So, starting with the U. S. Supreme Court regarding originality. The Supreme Court said that the originality requirement means only that the work was independently created by the author, as opposed to copied from other works, and that it possesses at least some minimal degree of creativity. So, originality has Two elements 1st independence, the work must be created without directly copying or adapting from another source and creativity.

Erin Austin: And this is a very basic threshold. You know, a lot of questions about, you know, how unique does it need to be? How, what if? You know, I've been something I've been thinking about for years and other people have written about it. Also, you know, it's not about artistic merit and is not about how innovative it is, you know, the, you can write about some same old standard ideas about, you know, how to train a dog.

Erin Austin: But the way that you write about it, the way that you talk about it, the way that you illustrate it has to be original. So that's the creativity is really about, um, uh, not copying. Right? Still kind of the same way of. Talking about originality, um, derivatives, you know, we'll get their own episode derivatives are works that are adaptations or modifications of preexisting works.

Erin Austin: So that's not what we're talking about today. We're talking about independent creation. So. Uh, I'm going to flip the order that I talk about it though. We talked about independent creativity, independent creation with a minimum degree of creativity. I'm going to talk about the minimum degree of creativity first and then close it out with the independence.

Erin Austin: So the, because the threshold for creativity is. So low, you know, minimal degree of creativity, I think it'll be really helpful to talk about a few examples of what doesn't meet the threshold. And just remember, as I talk about these, these are just examples. There's no way, of course, I could provide an exhaustive list, but this is for you to help you think about.

Erin Austin: Honestly, like, how low the bar is, but that if you don't meet that bar, then, you know, that's probably not something that would meet the copyright ability standards. All right, so 1st, when no creativity is involved in footage or photograph, I just like to talk about this 1 because, um. A lot of people have ring cameras or dash cams and, you know, is what is recorded copyrightable and this is an example of a mechanical recording, you know, uh, for that ring camera.

Erin Austin: It's a preposition device. Um, your dash cam. Uh, also, you know, you put it there and then you drive around and go about your day and you aren't composing shots with your dash cam. You're not composing shots with your ring camera. Uh, so generally, and I'll use some squishy terms, like generally and probably and maybe a night because obviously everything is.

Erin Austin: Fact specific, but generally, you know, these preposition devices, um, where you're not, you know, staging the shot are not going to meet the requisite threshold of originality. Now, that doesn't mean that that footage is in the public domain, which we'll talk about in part 3, you know, there will still be a protectable interest.

Erin Austin: Probably in that footage and people have rights to privacy. So anyone who appears in there, their license plates or their property and people have publicity rights. So, you know, you can't, you know, make somebody an Internet star without their permission. There might be music in there. There might be, um.

Erin Austin: You know, a store or something in there. So, uh, that doesn't mean just because it was on a dash cam that there's no, nobody has any predictable rights. They might, but they're not probably not copyrightable list of ingredients and instructions, you know, for recipe. You really can't separate the idea of the recipe kind of the non protectable.

Erin Austin: Parts of it, the ingredient list, the quantities, you know, the, the basics of how to stir and how hot the oven is. Like, these are I expressions of ideas and, uh, and ideas aren't copyrightable. Well, I should say I did. I said that wrong. I should say that the expression of the idea is copyrighted, but the idea itself isn't.

Erin Austin: But when all you have that expression is just kind of. Basically facts, it's it's you can't copyright quantities, ingredients, degrees of oven. So when you have a recipe book, I mean, you I'm sure or cookbook, I guess you didn't say you probably have a cook some cookbooks on your shelf and you'll see that they have copyright protection.

Erin Austin: So the copyright doesn't. Apply to the recipe. It applies to all the little stories that go around it. Um, you'll see if you go online and you look for recipe online and it's buried at the bottom of this story about the recipe. It's because the recipe itself. Is not protectable, but the story about it, um, is is protectable.

Erin Austin: Uh, and, uh, so that is, uh, yeah, the reason for your frustration. If you're anything like me, I'm always frustrated when I'm trying to find the recipe online. Uh. Another thing that is not copyrightable something that's inevitable that different creators acting completely independently without any idea what the other person is doing would arrive at similar or even identical results, because there's just so many ways to express an idea.

Erin Austin: So this is something that's functional like writing about the rules of how to play checkers. How many ways are there to describe how to play checkers or. How to, um, you know, train a dog, I think, you know, I mean, there's, there's, there could be something original about it, but there's some things that are just, you know, 2 independent people without even knowing the other exists and they're probably going to come up with the same content that is considered inevitable and probably not going to meet the, um, The minimum standards of creativity, there is a French term called sends up there.

Erin Austin: So this refers to situations, characters, settings, or incidents that are standard or customary to a particular genre. And so those would not be protectable. Um, for instance. You're writing a vampire novel. Your vampire sleeps in a casket. She doesn't go out at night, uh, during the day, and she's afraid of garlic.

Erin Austin: Well, guess what? Those elements are not copyrightable. You can't put those things in your vampire novel, claim copyright protection for them, and nobody else can write about those things, right? So those standard situations, standard characteristics, um, those things that. You know, by nature of, of the, of the genre of the, you know, even if it's a fictional and highly creative, um, those elements that are the son's affair would not be protectable next.

Erin Austin: We have common geometric shapes are familiar symbols, like a stop sign or a smiley face or a piece symbol. They don't lack. They don't have the necessary level of originality. They're considered functional or utilitarian. And quite frankly, just too simple to get, um, the cover up protection. Sometimes you'll have a geographic shape.

Erin Austin: You'll see an outline of a country outline of the US. You'll see that people do an outline of a state or other natural formations. The outline of, you know, um. A mountain, you know, Matterhorn or something. And so these are not the, the outlines, or even, you know, whole painting of it, that would not be, but the original elements of it would be so the shape of the U.

Erin Austin: S. No, but if you then take it and paint it in a way that is creative. Then that would be, um, if you take, you know, you'll see, I see these cutting boards in this shape of the state, and then they, you know, do some etchings on there. Um, the shape of that cutting board and the shape of the state would not be copyrightable, but, you know, the creative etchings that are on there, um, might be copyrightable.

Erin Austin: So it is the artistic expression that you layer on top of the symbol, um, you know, Crazy looking smiley face or crazy looking piece of ball. Um, you know, that, that, that artistic expression, um, would be copyrightable, but not the symbol itself. And works in consisting entirely of commonly known information or facts that does not contain original authorship.

Erin Austin: So this would apply to say, a standard calendar, um, or a directory of people. So, when we look at calendars and you'll get 1 that has, uh, it has a copyright claim on it and that is because of all the, you know, the, the Photographs of, you know, firefighters or whatever it is, uh, or dogs pooping. I saw one recently calendar of dogs pooping and interesting places.

Erin Austin: Um, so that those elements are copywritable, but the calendar piece is not so, you know, I keep, uh, myself organized by calendars that I download off the Internet that are just plain, um, uh, You know, just the numbers and the months and obviously those are not copyrightable a directory of names or facts might be copyrightable under certain circumstances, you know, depending on some level of creativity that you add.

Erin Austin: So, something about the coordination or arrangement needs to be, um, creative now here, the standard of creativity. Will need to be a little higher than just the minimal because you're starting with facts that are commonly known. So if you want to get protection over facts that are commonly known, then you do need to do something that is kind of innovative in the way that you're presenting them.

Erin Austin: It can't just be that you hand wrote them, you know, or something. Um, so that unique expression or presentation. Of the information or facts or ideas that unique expression or presentation might be protectable, but not the underlying facts themselves. So that those are some examples of what does not meet the minimum level of creativity.

Erin Austin: Use those to think about some others that are similar, um, that are just kind of common. And it's really hard to, you know, it'd be hard. To allow someone to get exclusive rights that you get with copyright for these things that are just everywhere and common. And by the way, that doesn't mean publicly known.

Erin Austin: And we'll talk about that in public domain, um, uh, episode. So, the fact that something's publicly known does not mean that it. Isn't creative all right now, we're going to the 2nd element, which is independence. So, when we're talking about independence, I'm going to assume that we are trying to create it without copying another source.

Erin Austin: That is our intent to create something original. We sat down at our computer. Started typing, and we believe that it is independent and that we didn't copy anyone. However, there's this thing called unconscious copying and that came up in my workshop as well. Like, well, what about there? All these people out there talking about all these things.

Erin Austin: How do I make sure that I don't, you know. And, uh, and that is an issue. Um, another term I liked, I think it's a UK term. I just saw this on the internet and I couldn't find out more about it, but I really liked it. It's called ambient influence, which I think is also an interesting way to look at it, but unconscious copying, ambient influence, it does have implications under copyright law.

Erin Austin: Um, it is, you know, what happens if you're unconsciously influenced by other people's work, you know, some, especially something that's really influential in the field and their presence is, you know, ambient, you know, all over the place. Whenever we're talking about a certain area, uh, that we may. Uh, engage in that person's work keeps popping up, you know, it's hard to write about being brave without a little bit of Brene Brown sneaking in there or, you know, writing a daily email list, you know, maybe you sound a little bit like Seth Godin, right?

Erin Austin: So, but the doctrine of subconscious copying does allow for liability without regard to the intent or knowledge. Of the copying. So even if the copying is unconscious, if it rises to the level of copyright infringement, and you'll need to go to the last series, I just did a three part series on copyright infringement.

Erin Austin: So, but if we have subconscious copying. And it rises to the level of a copyright infringement, then the fact that you did not intend or. Or didn't even realize that you're copying will not save you. So you can be on the hook for copying someone else's work, even if you honestly didn't mean to and didn't know it.

Erin Austin: And, uh, so, you know, the issue really is, you know, in today's world, we're constantly bombarded with information online. And when this doctrine of subconscious copying, um, was created, it was a different world. We weren't constantly bombed. Barded with information all day, every day, you know, in podcasts, you know, in our scrolling through our phone, you know, everywhere we go, we're getting information from a lot of sources and that we may not even realize it.

Erin Austin: Um, and so there has been a push against this doctrine, but the end of the day, it is, you know, between. The unconscious copier and the person who has a valid copyright, who's in a better position to prevent it from happening again. We, we have in the, in the previous series, we talk about what we can do as copyright owners.

Erin Austin: To minimize the possibility of somebody copying our work, but that applies to conscious copying. It doesn't apply. There's no way for us to protect against subconscious copying. So, between the 2, who is in the better position to prevent it? And at the end of the day, it is the person who may have subconsciously copied because it would be incredibly.

Erin Austin: You know, easy to say, hey, you know, I thought I did it about myself. You know, it's easy to say that and it'd be very difficult for the person who was, in fact, copied to prove that. No, you, you. You didn't it was conscious copying and not subconscious copying and so it kind of provide it would provide an offense that would be unfair to the person with the copyright protection.

Erin Austin: So what does that mean for you? So you need to be especially important. This is especially important for you. If you're in a niche that has just a handful of really prominent voices that basically most people recognize and so you need to make sure that. Their works don't seep into your subconscious when you're creating content.

Erin Austin: So be aware. There are these prominent voices, um, and I need to be aware that I'm not somehow subconsciously incorporating their voices and they do that by making sure that you have your own voice. Remember the ideas are freely available, you know. You can talk about their ideas. You can talk about bravery.

Erin Austin: You can talk about, you know, being unique and showing up and positioning and, and niches and all the things and leadership, all the things that we hear from big voices all the time. You can take their ideas. Those are freely usable, but the expression needs to be original. So make sure that when you're writing about these things.

Erin Austin: That you are mindful that those prominent voices aren't seeping into your work because it is on you to make sure that that doesn't have that. Uh, there are, you know, some tools to make sure that you haven't done that. Um, you know, I noticed recently when I was doing spell check on something that so this is in word that it had an option to check if you find something on the Internet and I tried it just to see how it work.

Erin Austin: And frankly. Which. It kept working and working and working and nothing ever happened. And so, you know, I don't have all day and I stopped using it. But, um, there are tools, you know, if you are worried about that, um, there are tools to use that. You can make sure you haven't subconsciously copied something.

Erin Austin: And and so, you know, I know it seems a little bit scary that you can be. Caught for subconscious copying, but I want to emphasize the ideas are freely usable. So if you subconsciously take somebody's idea, it's okay. But if you subconsciously create a copyright infringement. Which means you've copied their work, you've copied their expression, then that is not okay.

Erin Austin: And we find this, frankly, we find that we don't find this so much in the work that we do. We know that this happens a lot in music because, you know, for some kind of. You know, beat or chord or thing to get into your brain. And then you sit down and write without realizing that you heard it somewhere. Um, is, is a lot easier to do, uh, than it is in the work that we do.

Erin Austin: But, um, so I don't want you to panic about it, but I do want you to be mindful of it. So, thank you for another episode. I do want to say that the Copyright Ability Series is sponsored by Think Beyond IP. Think Beyond IP helps B2B experts with corporate clients lay the intellectual property foundation required to build new scalable revenue streams.

Erin Austin: Think Beyond IP has the legal expertise and the corporate experience to provide expert focus to the issues that matter most to you and to your corporate clients. I encourage you to get your free assessment. Is your expertise copyrightable? You can get that at thinkbeyondip. com. I'll see you next time.

Erin Austin: Thanks guys.