🔍 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

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, talked

about the originality

requirement in order for

otter.

ai Copyright laws, it

has to be copyrightable.

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.

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, 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.

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.

Is each book a

copyrighted original?

And so, I talk in depth

about the original.

and the originality standard

in the prior episode, but

briefly, the confusion when

we use the term, original

is that we think like, I'm

an original and that means

you're, absolutely unique

and innovative and novel.

And when we're talking about.

originality in terms of

copyright protection.

It simply means that it

was independently created

that it is not copied.

it is not that it is the

most mind blowing original

novel that anyone's ever

expressed, but that it

was independently created.

And so.

When we compare original

versus derivative, 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, and to create derivative

works from that work.

creating derivative works

is an exclusive right

of the copyright owner.

And so that's where this

question comes from, can I be

influenced by somebody else's

work without, tripping into

it being a derivative work?

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.

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.

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, fact specifics.

But generally, when you're

using fair use, you're taking

that original work and you

are, using it somehow, like,

in commentary or, in, teaching

or in education or research.

and so it's not

transformative nature of

creating something new.

It's about kind of taking.

Your copyrighted work,

some or all of it and using

it, in a way that adding

it to my thing in whole.

So what we need to think

about with fair use is that

fair use is not a license.

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.

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, 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.

that's my work.

You didn't ask me for

permission and either, they

want you to stop doing it

or they want to be paid

for it or maybe both.

the only way to assert

your fair use defense

is in court, right?

Cause that's what

a defense is.

So it is, coming

back and saying.

You're right.

I used it.

I didn't get permission,

but I'm not infringing

your copyright.

And this is why and

that is fact specific.

And that means that you

need to make your case

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, to your case.

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, it could be the most

important, maybe it's like

the resolution of the entire.

novel that you've taken

like, is that fair use?

Right?

And so, 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.

I don't like fair use.

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.

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.

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,

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.

I don't care how original

what you did like you create

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, just to compare fair use.

Versus derivative use, you

know, that fair use is kind

of taking some portion.

I'm taking some portion

of the Harry Potter book,

and I'm putting it into

some sort of, slide show

that I'm creating, or I am

having commentary about, the

portrayal of, people with

glasses in popular culture,

or something versus taking.

Harry Potter and

creating a new work

based on Harry Potter.

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, 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.

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.

my idea, but I've

incorporated some stuff

from some other people.

So it's, 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.

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 a

separate right under

copyright law than copying.

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,

there would be two of them.

They're different.

And so someone can create

a derivative without

actually copying anything.

So, let's take Harry Potter.

If I don't copy a single word

out of a, Rowling's, book.

But I...

create a novel that is

based on a, boy wizard who,

fought an evil Lord and

survived, death as an infant.

but I've not copied

anything from the novel.

And I create a new

series based on that.

I have, 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.

this is where it gets tricky,

which is, are we taking an

idea which is permissible?

We cannot copyright ideas.

Versus have we taken so

much of an idea that is

unique, like a boy wizard

he was almost killed as an

infant who defeats a Lord.

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 whether

or not you're using it to

create a derivative from it.

I think it's

fairly easy to see.

Please let me know if it's

not, when we look at 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.

We are improving upon them.

We are seeing them

from new ways.

We're writing about it.

there's not 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,

that it depends part so

much of legal analysis.

That it really does depend

on the circumstances.

So the question about

leadership books, for

instance, 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 the way to build culture

and, you to lead by example

and reward the behaviors you

want to see and things like

that that are considered

generally Generic leadership

skills, and for me to write

about that, even though I

read it in somebody else's

book is without copying, but

taking the ideas about how

to build leadership skills

is working with an idea,

but let's say someone has.

Written about, some very

innovative, very distinctive

leadership skills that

everyone immediately knows.

I wish I had a good example

a real life example of

someone who does something

radically different in order

to, create leadership skills.

and I can't even say,

like, going out in

wilderness things.

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.

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, to make an analogy

that maybe will help

also drive this home.

if we think about, sent

a fair in literature.

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,

in a vampire movie, 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.

Those aren't protectable

elements, but if you have

a vampire who, travels to

the dark side of the moon

or to get away from the

sun, that is not even that

would not qualify as a

sense of air and it would

be protectable that concept.

Even if you don't, copy

the words from that novel,

but if you take the concept

of a vampire that travels

to the dark side of the

moon, Maybe there's a lot

of books out there with

that, but, you it may be

that would be derivative.

Right?

And so it is nuanced.

There is not a bright line

like fair use something

you're taking 1 of these

non literary features.

Like, you're not literally

copying, but you're using.

some distinctive and

protectable elements of the

original work and so that

people would identify your

work with the other work.

someone mentioned

this that if.

a normal person read your

work and they assumed that

it was based on some other

known person's work, then

probably it is a derivative.

that is just if we

wanted to have some

kind of really rough.

Test that would be like, would

it just kind of the ordinary

person go, Oh, this must

be, based on, Harry Potter,

because this kid's got, a

lightning scar on his head.

All right, that is the best

we can do without looking at

the specific circumstances.

that brings us to,

okay, how do I.

Navigate, the fact that

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

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.

when we are in the

expertise-based business.

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 work trade is, is the

delivery of copyrighted works.

so I'll call that

our inventory.

When when we create

inventory, 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, from

the certifications that we've

received that, maybe a prior

job and some things that we

read some books that we read

some courses that we took.

And those are all things

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, parts of somebody's,

course, or parts of

somebody's book or, parts

of somebody else's training.

And so 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.

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

is mutual when we build a

culture of, the golden rule

of copyright, people are

respecting your rights as

a creator and you respect

their rights as a creator.

And so, not that I think

that anyone is doing

anything, 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, what

percentage is somebody's

material I can use to you.

So 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.

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.

And also please check

out thinkbeyondip.

com to get your free

assessment is your

expertise copyrightable.

All right.

Thanks again.

See you next time.