Eps 72 - Copyrightability Part 2. What Makes Something Truly Original versus Derivative? Transcript

Erin Austin: Hello, friends. Welcome to this week's episode of the hourly to exit podcast. I'm here with a another edition of the copyright ability series. This is part two of three. Last week, I talked about the originality requirement in order for something https: otter. ai Copyright laws, it has to be copyrightable.

Erin Austin: And one of those requirements is that the material needs to be original. And so last week, we talked about that. This week, we're going to talk about something that is related to originality, which is. Derivative derivative works and then next week we will talk about public domain materials and whether or not we can copyright those and how that relates to publicly available materials.

Erin Austin: I know there's a lot of confusion about that. Just so you know, I did a prior series about copyright infringement. So those were episodes 65, 66, and 67, where I talked about, you know, what constitutes a copyright infringement, how you can avoid accidentally infringing someone's copyright and steps you can take To minimize the possibility that you will be the victim of copyright infringement.

Erin Austin: So back to today, copyright ability with respect to derivatives. So I get questions like this. What makes something truly original versus derivative? We take so much from so many sources and develop our ideas from that. Another version of that is there are thousands of books on leadership and all of them do not have super original ideas.

Erin Austin: Is each book a copyrighted original? And so, uh, I talk in depth about the original. Uh, and the originality standard in the prior episode, but briefly, you know, the confusion when we use the term, uh, original is that we think like, I'm going to, I'm an original and that means you're, you know, absolutely unique and innovative and novel.

Erin Austin: And when we're talking about. Original originality in terms of copyright protection. It simply means that it was independently created that it is not copied. And so it is not that it is the most mind blowing original novel idea that anyone's ever expressed, but that it was independently created. And so.

Erin Austin: When we compare original versus derivative, um, think about derivative, on the other hand, is one of the rights that we have as copyright owners. So, briefly, when we are copyright owners, we have the exclusive rights to make copies, to distribute the work, to publicly perform the work, to publicly display the work, um, Uh, and to create derivative works from that work.

Erin Austin: And so, uh, derivative works, creating derivative works is an exclusive right of the copyright owner. And so that's where this question comes from, you know, can I be influenced by somebody else's work without, um, tripping into it being a derivative work? And so. Just to get it out of the way, because I know you're all asking about it, I will start by having a brief conversation about fair use.

Erin Austin: So fair use is a legal doctrine that allows the limited use of copyrighted material without needing permission from the copyright owner. Remember, copyright ownership gives us exclusive rights. That means if somebody wants to do something with my copyrighted work, then they have to get permission from me.

Erin Austin: But fair use says there are limited circumstances where they can use your work without your permission. So basically, typically, and all these things are going to be generalizations. Of course, there's always going to be, um, fact specifics. But generally, when you're using fair use, you're taking that original work and you are, you know, using it in the in somehow, like, in commentary or, uh, in, um, you know, teaching or in education or research.

Erin Austin: Um, and so it's not about as much about the transformative nature of creating something new. It's about kind of taking. Your copyrighted work, some or all of it and, and using it, uh, in a way that I'm adding it to my, my thing in, in whole. So what we need to think about with fair use is that fair use is not a license.

Erin Austin: Because we're doing it without a license that is by definition, we are using that work without a license. So what it is, is it is a defense against a copyright infringement claim. So when we are relying on fair use, we are saying, I am going to use your copyrighted work without permission, because I think it falls under this exception to require permission.

Erin Austin: And that's all great. Unless you're the copyright owner disagrees with you. And chances are, if you hear from them, that means they disagree with you. They're not, you know, checking in with you just to tell you what a brilliant job you did, maybe, but probably they're checking in with you because, hey. You know, that's my, my work.

Erin Austin: You didn't ask me for permission and either, you know, they want you to stop doing it or they want to be paid for it or maybe both. And so, and the only way to assert your fair use defense is in court, right? Cause that's what a defense is. So it is, um, coming back and saying. You're right. I used it. I didn't get permission, but I don't I'm not infringing your copyright.

Erin Austin: And this is why and that is fact specific. And that means that you need to make your case that there that it is a fair use. People will ask, you know, well, is there a percentage? Is it 5 percent or 10%? And there's not a formula for it. Courts have consistently refused to say there's a formula. They have a framework for the court who's listening to it, uh, to your case.

Erin Austin: To evaluate your facts, but they do not have a formula that you plug in and say, okay, I only took 1 page out of a 300 page novel. So it's 1, 300 and therefore it's for us. It's not, you know, I, um, so, you know, it could be the most important, you know, maybe it's like the, the, the, the, um, the resolution of the entire.

Erin Austin: A novel that you've taken like, how is that fair use? Right? And so, um, that, you know, fair use is user beware because there is no guarantee that you'll win. And even if you do, you've expended a fair amount of resources to get there. All right, so enough about fair use. That's my, my, you know, I don't like fair use.

Erin Austin: So let's talk about derivative works. So again, a derivative work is a new original work that includes aspects of a pre existing copyrighted work. So to create a derivative work, you need permission of the copyright. Holder. Remember the right to create derivative work is an exclusive right held by the copyright owner.

Erin Austin: So you need to get that right from the copyright owner, right? And so derivative works include things like sequels or adaptations or translations. So something where you're taking. That original work pre existing copyrighted work, like a book, and you are adding some new elements to it, like a new language or making it a sequel or turning a book into a movie, you know, and so that new work, the derivative work is also eligible for copyright protection, except if you don't have the right to use To create that derivative work.

Erin Austin: I don't care how original what you did like you create a, um, a sequel to Harry Potter. I don't care how original it is. If you don't have permission to create that sequel, then even the original parts of that are not eligible for copyright protection. All right. So, so just to compare fair use. Versus derivative use, you know, that kind of fair use is kind of taking some portion.

Erin Austin: I'm taking some portion of the Harry Potter book, and I'm putting it into some sort of, you know, slide show that I'm creating, or I am having commentary about, um, you know, the portrayal of, um, people with glasses in popular culture, you know, or something and versus taking. Harry Potter and creating a new work based on Harry Potter.

Erin Austin: All right. So if we get back to that question, what makes something original versus derivative? Well, that isn't the right question to ask. And for a couple of reasons, one, it suggests that there is some kind of continuum between original and derivative. Like we started, you know, once and it's For me on the left, because I go left to right is something completely original right with not copying or using any 3rd party material of any kind.

Erin Austin: So that's and then we kind of go and yeah, we corporate a little bit that I got from someone else. So it's mostly original. I'm having a little bit or it's. You know, my idea, but I've incorporated some stuff from some other people. So it's, you know, a little less original. Right. And then at some point, as I continue to incorporate somebody else's stuff, it flips over into derivative and it doesn't work like that.

Erin Austin: Like, so there is that. So copying is very. Binary. So either it's original or it's not. So if you've copied anything from somebody else and by copying, I literally mean copying, then it doesn't matter how small it is. It's not original. And derivative is not, is a separate right under copyright law than copying.

Erin Austin: Remember copying is its own standalone, right? Under copyright law and creating derivative works is its own standalone right under copyright law. If it were the same thing, they would, there would be two of them. They're different. And so someone can copy can create a derivative without actually copying anything.

Erin Austin: So, uh, let's take Harry Potter. If I don't copy a single word out of a, um, JK Rowling's, uh, book. But I... Um, create a novel that is based on a, um, boy wizard who, um, fought an evil Lord and survived, you know, death as an infant. And I have not, but I've not copied anything from the novel. And I create a new series based on that.

Erin Austin: I have, uh, infringed on her JK Rawlings right to create derivative works based on her Harry Potter novels, even though I have not literally copied any part of her novel. And so that's where it gets tricky. So it's not about, you know, how much of it is original versus copied. It's how much of the idea.

Erin Austin: Like, you've taken an idea, which we are allowed to copy, right? Copyright does not, uh, protect ideas, and we, have we tripped over the ability to use somebody else's idea, but have we used so much of their idea, and I'm going to explain this in a minute, that it becomes a derivative. And so let's take the example from the music space, you know, because there are some people who are very anti derivative rights.

Erin Austin: Because it looks a lot like we're protecting ideas right and so maybe it's a little bit easier to think about in the music space, but, you know, there are no, there are not exclusive derivative rights in the music space, because we can. Take somebody else's song and I can rerecord it and I don't have to get permission.

Erin Austin: I do have their things called compulsory licenses. I do have to pay the songwriter and whoever wrote the song, the lyrics and who wrote the music. If I use it, I have to pay for it, but I don't have to get a license. I just have to use one of these preexisting compulsory licenses to use it. And, um, and so I can cover it because.

Erin Austin: The, the music is kind of considered an idea. All right. Um, I am going to ask you to start back. I'm going to start over again after the part where go back to the part where I say, uh, this is where it gets tricky, which is, are we taking an idea which is permissible? We cannot copyright ideas. Versus have we taken and I so much of an eye of a idea that is unique, like a boy wizard with a, he was almost killed as an infant who defeats a Lord.

Erin Austin: And created something that trips us into being a derivative. And so there is a continuum there, not between how much is copied and how much is derivative, but there's a continuum between the nature of the idea that you're taking and what and whether or not you're using it to create a derivative from it.

Erin Austin: And so I think it's fairly easy to see. Please let me know if it's not, um, when we look at a literary example, a fiction, a literary fiction example, like Harry Potter versus what we do and what we do every day. And so, when we are influenced and create our expertise, you know, we are taking in ideas all the time and we are incorporating them into our work.

Erin Austin: We are improving upon them. We are seeing them from new ways. We're writing about it. And so, um. You know, there's not a align. There's not a bright line where it's idea idea idea. I'm taking an idea idea and then it becomes a derivative. So that's what's kind of, uh, you know, that it depends part of so much of legal analysis.

Erin Austin: That it really does depend on the circumstances. So the question about leadership books, for instance, you know, there are a lot of leadership books and there are lots of generic leadership skills that we learn throughout our careers. And so if we're talking about, you know, the way to build culture and, you know, to lead by example and reward the behaviors you want to see and things like that that are considered generally Generic leadership skills, you know, and for me to write about that, um, even though I read it in somebody else's book is without copying, but taking the ideas about those how to build leadership skills is working with an idea, but let's say someone has.

Erin Austin: Written about, uh, some very innovative, very distinctive leadership skills that everyone immediately knows. I wish I had a good example of someone, a real life example of someone who does something radically different in order to, uh, create leadership skills. Um, and I can't even say, like, you know, going out in wilderness things.

Erin Austin: I know that the people who do that, but someone who does something radically different. Now, for you to take that idea, even though you don't copy the words from their book, but you take their radically different way of teaching leadership skills and you use them to create your own training program, that starts to look like a derivative work.

Erin Austin: And I say it looks like it because it really would need more analysis to know exactly whether or not you create a derivative work. And, uh, you know, to make an analogy that maybe will help also drive this home. You know, if we, if we think about, uh, sends a fair in literature, I think it's sent a fair sent a fair in literature.

Erin Austin: You know, it is a French term that refers to the situations, characters, settings, or incidents that are standard or customary in a particular genre, and therefore they aren't protectable. So, scenes d'affaires are not protectable under copyright law. So examples of that would be, you know, in a vampire movie, you know, that the vampire sleeps in a casket and they can't go out during the day and they don't eat garlic or are afraid of garlic.

Erin Austin: Those aren't protectable elements, but if you have a vampire who, you know, travels to the dark side of the moon or to get away from the sun, you know, that is not even the, you know, that would not qualify as a sense of air that, and it would be protectable that concept. Even if you don't, um, copy the words from that novel, but if you take the concept of a vampire that travels to the dark side of the moon, it may be, you know, Maybe there's a lot of books out there with that, but, you know, it may be that that would be derivative.

Erin Austin: Right? And so it is nuanced. There is not a bright line like fair use when something is, um, you're taking 1 of these non literary features. Like, you're not literally copying, but you're using. Um, some some distinctive and protectable elements of the original work and so that that people would identify your work with the other work.

Erin Austin: Um, you know, someone mentioned mentioned this that if. The of a normal person was just read your work and they assumed that it was based on some other known person's work, then probably it is a derivative. That's just that is just if we wanted to have some kind of really rough. Test that would be like, would it, would it just kind of the ordinary person go, Oh, this must be, you know, based on, you know, Harry Potter, because this kid's got, you know, a lightning bolt on his head, a lightning scar on his head.

Erin Austin: All right, so that is the, the best we can do without looking at the specific circumstances. All right. So that brings us to, okay, how do I. Navigate, you know, the fact that I'm doing, uh, I'm out here in the world consuming information from all over the place. And I'd like to leave you with what we call the golden rule of copyrights know.

Erin Austin: And that is if you didn't create it. Then you don't own it and you can't use it without permission. And so that is kind of the fundamental principle of copyright law, which is to protect the rights of the creators, that the right that the creator has over their original work, it grants exclusive rights to the creator.

Erin Austin: And when we are in the expertise based business. You know, our inventory is copyrighted works generally when we are creating deliverables for our clients. Generally that is a copyrighted work when we are delivering a program, you know, a training, that's generally a copyrighted work. Typically. What are what work trade is, is the delivery of copyrighted works.

Erin Austin: And that is so I'll call that our inventory. When we think about when we create inventory, like, that means we need raw materials, right? We need to get in order to create inventory. We need raw materials. And some of that will come from us from just our experiences in the world, um, from the certifications that we've received that, you know, maybe a prior job and some things that we read some books that we read some courses that we took.

Erin Austin: And those are all things that. Maybe are in that are raw materials in creating our inventory, but all of those things when we are experts are also copyrighted works being. That is somebody else's property when we are taking, uh, uh, parts of somebody's, uh, course, or parts of somebody's book or, um, you know, parts of somebody else's training.

Erin Austin: And so we, we should no longer. Expect to receive for free the raw materials to create our inventory than a car manufacturer would expect to receive for free the raw materials to create their inventory, which is cars just because our inventory is intellectual and the raw materials are intellectual does not mean it isn't a real.

Erin Austin: Asset with value with a owner who has a right to be paid for it. So that would be the golden rule of copyrights and that comes down and that is mutual when we build a culture of, uh, the golden rule of copyright, people are respecting your rights as a creator and you respect their rights as a creator.

Erin Austin: And so, not that I think that anyone is doing anything, um, you know, they're trying to intentionally infringe on anyone's copyright. But this is where we get into that unintentional copyright infringement territory when we are trying to parse, like, how, what percentage is somebody's material I can use before I slip over into derivative work.

Erin Austin: Um, so. I hope that's helpful to you. Uh, again, this is a series and this series is sponsored by Think Beyond IP, where we work with B2B experts to have a crap. I'm not going to redo this. All right. So I'm going back now to the sponsorship. So the Copyright Ability Series is sponsored by Think Beyond IP.

Erin Austin: Think Beyond IP helps B2B experts with corporate clients lay the intellectual property foundation required to build new scalable revenue streams. Think Beyond IP has the legal expertise and the corporate experience to provide expert focus to the issues that matter most to you and to your corporate clients.

Erin Austin: And also please check out thinkbeyondip. com to get your free assessment is your expertise copyrightable. All right. Thanks again. See you next time.