Ep. 23 | Is It Inspiration or Copyright Infringement?

It's probably fair to say that most of us have used someone else's ideas as inspiration at some point in our business. There's value in using other people's experiences to figure out what's working. Not to mention it's nice to have a place to start.

But how do you know when looking for inspiration crosses the line into copying? Tune in to find out.

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Transcript

SPEAKER_00 0:00

I think it's safe to say that every single one of us has been in this situation where we see someone else, another creator in the online space, another business owner doing a similar thing to us, or even in a totally different niche. We see something that they've done and we think, oh, that is a great idea. I have to do that too. And that begs the question at what point are you inspired by someone else? And at what point are you copying them? Where is is there is there a clear line there? And where is that line in between being inspired by someone and loving what they do and then putting your own spin on something, creating something new out of it, versus if you see an idea and you do it yourself, are you actually just copying them? Of course, a lot of this is gonna be very personal and you're gonna make that decision for yourself, but there's also a legal answer to that. So that's what we're gonna talk about today. Hey, I'm Amy Nestheim, licensed attorney for online business owners and founder of my own business, Artful Contracts. You're listening to Legal Made Easy, the show that makes the legal aspects of online business easy to understand and implement so you can grow your business with confidence knowing you've got it all covered. Let's dive in. Obviously, it is unavoidable that we're going to see other people's work. I mean, you could go and unfollow everyone, and I know people who do that. Unfollow everyone that's even remotely similar to what you do, and then you don't have to worry about copying them. But on the other hand, there is a lot of value in seeing what other people are doing that's working. I love being nosy about other people's businesses and seeing what they're doing and what how it's working for them, and then taking ideas from that as to what to do in my own business. And you know, every copywriter, when they're starting out, they get the advice, you know, go create a swipe file, take screen grabs of everything you see, and put it in a folder so that you can reference back to it because it gives you ideas. And of course, the entire business coaching business is based on this idea of like having a place to start. Lots of business coaches provide swipe files, provide email templates, outlines of how to do things. It's really nice having a starting point, it makes it go a lot faster, and seeing someone else's work can spark new ideas for you. You see it and you think, wow, I disagree with that. There's a content idea, it's gonna be something controversial, it makes it even better, right? But there are also people who just see stuff and then think, okay, I have to make that too, and just recreate the exact same thing. So, how do you figure out, number one, for your own content creation process? How do you figure out if you're too close, if you're being too inspired by someone else? And then on the other hand of it, if you see somebody copying you, how can you tell if it's too close to be legal? If it's too similar that it is then considered copyright infringement, or how do you tell if they made it different enough that you really shouldn't say anything because they've put their own spin on it? The first thing that you need to know here is that copyright protection applies to anything you create, but it does not apply to ideas or concepts. Copyright protection applies to creations that have been put into fixed format, which means they've been written down, recorded, or put into some kind of reproducible medium. Someone else is able to perceive it and then reproduce it. So if there's an idea that's just in your head, no one else can perceive that or reproduce it. So that's not eligible for copyright protection. Now, on the other hand, there is such a thing as derivative works. So if an idea is put into fixed format, if it's well developed enough and put into that tangible medium, copying that same concept closely enough could still be considered copyright infringement because the new thing that has been created is a derivative work, and a copyright owner has the right to give permission or deny permission for someone else to create a derivative work based off of their content. So I think the easiest way to think about this is Netflix is TV. So, you know, a book that has been made into a TV show. The book is the original content, and the TV show is the derivative work. So obviously, the TV show is not, you know, showing pages, images of each page of the book, or even necessarily using the exact same dialogue, but the characters are there, the plot line is there, it's recognizable that the storyline and the characters and the scenery and the world building it came from this book, it came from the ideas and concepts, the well-thought-out content of this book. So that TV show is a derivative work of the book, and that means that Netflix or you know, whatever the producer is, had to go to the author of the book and get permission to create that derivative work because if they didn't, it would be copyright infringement. So, what that means for us here is if someone has a has a content idea that is specific and well developed and identifiable and creative and unique enough that then creating something is obviously references back to that original creation, then that might be considered a derivative work and therefore a copyright infringement unless you had permission for it. Now, for something like a social post, it's probably not ever going to be unique enough, complicated enough, etc., to really be a derivative work. But if it's like the concept for a course, you know, somebody's five-step signature method to achieve this X specific result, creating your own course with that same method, even if it has a different name, that might be too close. It might be identifiable. Now, obviously, there are 101 Instagram courses out there. There are lots of courses that have the same topic, that go over the same things, that compete with each other, but they're not copying each other necessarily. And there's a couple reasons for that. So, number one, independent creation is always a winning defense. If you didn't go, if somebody accuses you of copying their course and you never took their course and you don't know what's inside their course, and you just happen to create something that was similar, then that's not a problem. Like they can't, you can't have copied something that you never saw, right? So that's always going to be okay. The more difficult conversation arises when you did take their course, you did read their book, you did consume their social content, whatever it is, and you made something similar or that they think is similar, then what? At that point, the key to figuring out if something is a derivative work or a new creation with its own copyright is transformation. Have you taken that first thing and put enough of your own spin on it that it is now something completely new? And that takes more than just, you know, using your own words or putting your own stylizing on it. So it's not just, you know, swiping a sales page and changing around a few sentences. It's got to be completely new. On top of that, there's also what's called the fair use test. This is a four-factor test that the courts use to figure out if some the way that someone used another person's copyrighted work is allowed or if it's infringement. And they use this test no matter how the new work was used. So whether somebody is creating something new based off of it or if they're just, you know, republishing it or whatever. So they use the same test to figure out if someone is allowed to use content, either to create something new or republish it. It's the same idea. So there are four factors to this test, and basically the court looks at all of them and weighs them all together and decides if on the whole the factors were met or not. And now I'm gonna go through them, but I just wanted to give you a heads up that if you feel like you meet this test, it's not a permission slip to go copy somebody else's work, it's a defense. So the court has to basically this only comes up, you only know if you really do fall under the fair use exception. If someone sues you and you bring it up in court and say nope, it's fair use, and then the court and analyzes these four factors and makes a decision. So you can't definitively say my use falls under fair use until a court says that for you. But of course, knowing the factors ahead of time can help you make sure that you are using someone else's work if you're going to, that you're doing it the right way, and you know, falling under these factors as much as you can. Alright, so here they are. I remember them with the acronym PAIN PANE, and it helps me keep them top of mind. So the P is the purpose and character of how the work was used. A, the next factor is the amount and substantiality of the old work that was used. The third factor, N, is the nature of the original work. And finally, E is the economic impact of the new work on the original author. So to just give you a little bit more detail on those, first, the purpose and character of the new work has to do with what is what is what's its purpose, what is it being used for, and this is where transformation comes into play. So the purpose, if it's educational, nonprofit type uses, if that's the purpose of the use of the original work, then that's going to be more likely to fall under fair use. And if the use is transformational, if it's a parody, if it's commentary, if the old work is being used to create something totally new, then that's more likely to be fair use. And again, the key is transformation. The second piece, amount and substantiality of the old work that was used, has to do with how much of the original work was used. So was it five seconds out of a two-minute song? Now I will say that there's this rumor that you know, X amount of a song means that it's fair use, but there is no definitive, you know, second amount of seconds, that's okay. Because it also has to do with the substantiality. So if you're using the five notes that are the most recognizable in the song, even though it's five notes, it might be a problem. And it's all relative. So if you're using one sentence or one line out of a three-line poem, that might be problematic, but you could use a whole paragraph out of an 800-page book. So it's relative to how long the original work is and what piece of it you took, is at the heart of the work. Next is the nature of the original work, and that has to do with whether the original work was super creative or if it was more factual. The more original or creative something is, the less likely it's gonna be okay to copy it. But if it's something like a factual news story or an encyclopedia or basic informational type creation rather than something that's more creative in nature, then it's gonna be more okay to take pieces of it. And then finally, economic impact has to do with how the way that you've used the old work has impacted the original creator. So are you blocking them from entering a new market? Are you taking away from their possible revenue streams from their work? I like to think of this like let's say somebody writes a book on a topic and you read the book and you want to teach about it. So are you teaching that the concepts of the book so thoroughly that your student would then not go buy the book because they have everything they need on the topic from you? Or are you summarizing it and then saying, hey, go buy this book because it does a better job, but you're you know recommending it to your students? Those are a totally different economic impact. And then you think about okay, so this book author, then if you have the market cornered on their topic, but they hadn't created an online course about it yet, are you preventing them from entering the mark, the online course market with their topic? That would be a negative economic impact and would weigh against you. So again, none of the none of these individual factors is any more important than the other ones. They're all weighed together and they're all important. If you want to go deeper with me on this and see a few more examples of how the factors might come into play, I'm teaching a live workshop on February 9th all about copyrights and protecting your content, making sure that you're using other people's content the right way, and evaluating how you can evaluate the way other people are using your content. If you want to learn more about that, go to artfulcontracts.com slash copycat dash workshop and you can see what we're gonna go over there. It's gonna be about a 90-minute workshop, and you get access to the replay and all of the templates that you need to implement. So, my goal for this workshop is to make sure that you can hit publish on your next post with confidence, knowing no one else can copy it. Share free downloads without worrying that someone else is gonna steal it and sell it as their own. Actually be able to make the decision about how your clients and students can use the work that you create and your content that you sell to them and communicate that effectively. And if the worst does happen, you'll be empowered to actually stop copycats from copying you. I am so excited to teach this content live on Zoom. It's gonna be super interactive, and I would love to see you there. So go to the link down in the show notes to grab your ticket. All right, I'll see you next week.