In this new series, we'll tackle the ins and outs of copyright law and what it takes for a work to be considered copyrightable. 

Drawing from real-life experiences and legal expertise, This episode brings clarity to the complex topic of originality. 

Discover how the US Supreme Court's definition of originality factors into independence and creativity. Learn about the minimal degree of creativity required for a work to be considered copyrightable.

Key Takeaways from this Episode: 🔍

1️⃣ Originality and Creativity: In order for a work to be copyrightable, it must be independently created without directly copying or adapting from another source, and possess at least some minimal degree of creativity. It's not about how unique or innovative the work is, but rather how it's expressed.

2️⃣ What Doesn't Meet the Threshold: There are several examples of works that do not meet the minimum level of creativity required for copyright protection. Examples include mechanical recordings (e.g. dash cam footage), lists of ingredients and instructions for recipes, common geometric shapes or familiar symbols, and works consisting of commonly known information or facts.

3️⃣ Unconscious Copying and Ambient Influence: If you're working in a niche with influential voices, it's important to be mindful of subconscious copying or ambient influence. Though unintentional, unconscious copying can still lead to copyright infringement. Being aware of your influences and making sure you have your own voice can help maintain the originality of your work.

🔗 Dive into the full episode and get expert insights on copyrightability by tuning in to the Hourly to Exit Podcast. Don't forget to check out our sponsors at Think Beyond IP for valuable resources on building sustainable revenue streams through intellectual property.

Stay tuned for the next episode, where we'll explore derivatives and adaptations!

Connect with Erin to learn how to use intellectual property to increase your income and impact. hourlytoexit.com/podcast.

Erin's LinkedIn Page: https://www.linkedin.com/in/erinaustin/

Think Beyond IP YouTube Page: https://www.youtube.com/channel/UCVztXnDYnZ83oIb-EGX9IGA/videos

Music credit: Yes She Can by Tiny Music

A Team Dklutr production

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.

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.

is your expertise

copyrightable assessment

and there are so many

questions about originality

that I knew I had to

explain it a bit more.

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.

And this is a very

basic threshold.

a lot of questions about, how

unique does it need to be?

what if?

something I've been thinking

about for years and other

people have written about it.

Also, it's not about artistic

merit and is not about

how innovative it is, the,

you can write about some

same old standard ideas

about, how to train a dog.

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, not copying.

Right?

Still kind of the same way of.

Talking about originality,

derivatives, we'll get their

own episode derivatives

are works that are

adaptations or modifications

of preexisting works.

So that's not what we're

talking about today.

We're talking about

independent creation.

So.

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.

So because the threshold

for creativity is.

So low, minimal degree of

creativity, I think it'll

be really helpful 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.

Honestly, like, how low

the bar is, but that if

you don't meet that bar,

then, 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, lot of

people have ring cameras or

dash cams and, you is what

is recorded copyrightable

and this is an example of

a mechanical recording,

for that ring camera.

It's a preposition device.

your dash cam.

also, 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.

so generally, and I'll use

some squishy terms, like

generally and probably

and maybe a night because

obviously everything is.

specific, but generally,

these preposition devices,

where you're not, staging

the shot are not going

to meet the requisite

threshold of originality.

Now, that doesn't mean that

footage is in the public

domain, which we'll talk about

in part 3, there will still

be a protectable interest.

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, make

somebody an Internet star

without their permission.

There might be music in there.

There might be, a store

or something in there.

So, 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, for recipe.

You really can't separate

the idea of the recipe kind

of the non protectable.

Parts of it, the ingredient

list, the quantities,

the basics of how to stir

and how hot the oven is.

the expression of the

idea is copyrighted, but

the idea itself isn't.

But when all you have that

expression is just kind of.

Basically facts, 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

some cookbooks on your shelf

and you'll see that they

have copyright protection.

So the copyright doesn't.

Apply to the recipe.

It applies to all the little

stories that go around it.

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, is protectable.

and, so that is, the reason

for your frustration.

If you're anything like

me, I'm always frustrated

when I'm trying to

find the recipe online.

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.

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, train a dog, I mean,

there's, could be something

original about it, but there's

some things that are just,

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, minimum standards of

creativity, there is a French

term called sends up there.

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.

for instance.

You're writing

a vampire novel.

Your vampire

sleeps in a casket.

She doesn't go out at

night, during the day, and

she's afraid of garlic.

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,

those things that.

You know, by nature of the

genre of the, even if it's

a fictional and highly

creative, those elements that

are the son's affair would

not be protectable next.

We have common geometric

shapes are familiar symbols,

like a stop sign or a smiley

face or a piece symbol.

They don't have the necessary

level of originality.

They're considered

functional or utilitarian.

And quite frankly, just

too simple to get, the

cover up protection.

Sometimes you'll have

a geographic shape.

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, A

mountain, you know,

Matterhorn or something.

And so these are not the

outlines, or even, whole

painting of it, that would

not be, but the original

elements of it would be

so the shape of the U.

S.

No, but if you then take

it and paint it in a

way that is creative.

Then that would be, I

see these cutting boards

in this shape of the

state, and then they, do

some etchings on there.

the shape of that cutting

board and the shape of

the state would not be

copyrightable, but, the

creative etchings that are on

there, might be copyrightable.

So it is the artistic

expression that you layer

on top of the symbol, Crazy

looking smiley face or

crazy looking piece of ball.

that artistic expression,

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.

So this would apply to

say, a standard calendar,

or a directory of people.

So, when we look at calendars

and you'll get 1 that has

a copyright claim on it

and that is because of

all the, Photographs of,

firefighters or whatever

it is, or dogs pooping.

I saw one recently

calendar of dogs pooping

and interesting places.

so those elements are

copywritable, but the calendar

piece is not so, you know,

I keep, myself organized by

calendars that I download

off the Internet that are

just plain, just the numbers

and the months and obviously

those are not copyrightable

a directory of names or

facts might be copyrightable

under certain circumstances,

depending on some level of

creativity that you add.

So, something about

the coordination or

arrangement needs to be,

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.

It can't just be that you

hand wrote them, or something.

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 those are some examples

of what does not meet the

minimum level of creativity.

Use those to think about

some others that are similar,

that are just kind of common.

And it's really 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.

And we'll talk about that

in public domain, 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.

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.

How do I make sure

that I don't, you know.

and that is an issue.

another term I liked,

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.

it is, you know, what happens

if you're unconsciously

influenced by other

people's work, especially

something that's really

influential in the field

and their presence is,

ambient, all over the place.

Whenever we're talking about

a certain area, that we may.

engage in that person's

work keeps popping up, 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, maybe

you sound a little bit

like Seth Godin, right?

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.

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 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.

so, the issue really is,

in today's world, we're

constantly bombarded

with information online.

And when this doctrine

of subconscious copying,

was created, it was

a different world.

We weren't constantly bombed.

Barded with information

all day, every day, in

podcasts, you know, in our

scrolling through our phone,

everywhere we go, we're

getting information from a

lot of sources and that we

may not even realize it.

and so there has been

a push against this

doctrine, but the end of

the day, it is, 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, in the previous series,

we talk about what we can

do as copyright owners.

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.

easy to say, hey, you know, I

thought I did it about myself.

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 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.

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.

So be aware.

There are these prominent

voices, 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 can

talk about their ideas.

You can talk about bravery.

You can talk about, being

unique and showing up and

positioning 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.

That you are mindful that

those prominent voices

aren't seeping into your work

because it is on you to make

sure that doesn't have that.

there are, some tools

to make sure that you

haven't done that.

I noticed recently when I

was doing spell check on

something so this is in

word that it had option to

check if you find something

on the Internet and I tried

it just to see how it work.

And frankly.

Which.

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, there are tools, if

you are worried about that,

there are tools to use that.

You can make sure you

haven't subconsciously

copied something.

and so, know it seems a little

bit scary that you can be.

Caught for subconscious

copying, but 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.

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,

for some kind of.

beat or chord or thing

to get into your brain.

And then you sit down and

write without realizing

that you heard it somewhere.

is a lot easier to do, than

it is in the work that we do.

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.

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.

Thanks guys.