The copyright to your original work does not protect you simply from the violation of your rights to that exact work.
This free legal information is made available courtesy of Counsel to Creativity.
Copyright also protects you against those who create works that are close to yours but not exact copies of your work.
So what’s the test? How close does something have to be to infringe your copyright?
There are two tests for copyright infringement—one for works that are nearly exact copies and one for works that have identifiable differences. But for our purposes here, let’s look at what happens when there are two works that have identifiable differences—because that’s where most of the questions come up.
Copyright infringement, where the works involved are not identical has two parts:
- Did the person creating the other work have access to your work?
- Is the other work substantially similar to your work?
There are likewise then two parts to whether the work is substantially similar: (1) Are the concrete details in the two works similar? And (2) would a reasonable person confuse the two pieces of work? If the answer to either one of these questions is yes, the work is substantially similar.
Determining copyright infringement can get complex.
There are actually several different tests that courts use when they look at the substantial similarity of two works, depending upon the type and context of those works. As a creative entrepreneur conducting day to day business, it’s enough to have the basic understanding to ask: Would a reasonable person confuse these two works? Beyond that, if you are faced with an infringement issue, it’s wise and in your best interest to have an attorney analyze the similarities of the work and advise you.
Let’s take an example. Someone who was previously enrolled in one of your programs took your materials from the program and created her own program materials. You, upon seeing her materials, believe she used your work. Do her materials infringe your copyright in your materials? To infringe on your copyright, she would have to have had access to your materials and her materials would have to be substantially similar to yours. Here, she had access: she was a student in your program where you provided the materials. Then you would ask, would a reasonable person think that what she created was my work? If so, her materials infringe your copyright.
All of that said, remember, the parts of your work that are common—such as facts—are not protected by your copyright.
Only your expression is protected; not the facts or information you convey. So, let’s take this blog post. How copyright infringement works (what the legal test is and how it operates) is not protected by copyright and reserved only to me or to Counsel to Creativity. How I’ve explained it—the words I’ve used and the way I’ve put the post together, any humor or original stories about copyright infringement or any exercises for you to use in your business—is protected under copyright law.
In other words, I cannot prevent another attorney from writing a blog post about copyright infringement. That wouldn’t make any sense. I can prevent her from lifting this post or from writing a post that when read, ya’ll say, that sounds exactly like Rebecca!
Share with me in the comments the biggest thing you learned about copyright infringement.
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Looking to change your business to better suit your life? Rebecca Prien also provides business coaching and business model design services through Ompreneur | The Yoga of Entrepreneurship.