One of the most common questions I get asked aboutlaw is “How much do I need to change in (insert creation name) in order to use it without infringing copyright?”
Whether they are asking because someone reused their work or they are thinking about doing it to someone else, these people are usually asking the wrong question.
Likely misled by rumors of a 10 percent rule or something similar, many think there’s some magic number that lets themselves or others skirt copyright law by creating a new work from an old with minimal work.
Unfortunately, these people often get a very hard lesson about copyright and the way the law works when they try to put their theory into practice. The reason is that the notion of derivative works is far from that simple. However, it’s a right that every creator needs to be aware of and understand, both to help them protect their own work, and to know how to interact with other copyrighted works as well.
The Basics Under the Law
When it comes to what copyright protects, the law is very clear. Copyright law protects the expression of an idea but not the idea itself. This means that the text of the Harry Potter series is protected by copyright law but the idea of a boy wizard going to a wizard school and fighting off evil forces is not. (Note: This will likely play into the Willy the Wizard case in the UK, which has JK Rowling being accues of plagiarizing an earlier tale of a boy wizard.)
However, one of the rights granted copyright holders is the sole right to create derivative works based on the original. This includes, many things but common examples include translations, sequels, motion picture adaptations and so forth.
Almost instantly the problem becomes clear. Though copyright law is not supposed to protect the idea behind a piece, it provides a right to the copyright holder that covers intangible elelements and makes it so that a work with no language in common with the original can be an infringement.
Unfortunately, things get even more confusing when one factors in fair use, which allows others to use portions of a copyrighted work for purposes such as different creative expressions not based on the original, commentary, criticism, news reporting and other highly transformative uses.
In short, all three questions of law, the limitations of copyright, the right to create derivative works and fair use, collide in a very confusing and potentially dangerous way when it comes to altering the works of others.
Seeking an Ordinary Observer
So how does one determine if a work is a derivative of another? It’s not a simple question and the law has as very unclear answer.
Copyright law, along with other areas of intellectual property law, use what is known as an ordinary observer test. Specifically, it is wether “an ordinary reasonable person” would find that the two works are “substantially similar”.
This, it is worth noting, is very different from an expert observer, who is someone accustomed to making such comparisons.
Clearly, this test is miles from the “bright line” rules that many tout. In fact, the entire test is horribly muddled and confusing as we have an imaginary “ordinary” person determining whether two works meet a very ambiguous and at times subjective test as to their similarity.
Because of this, as with fair use and other areas of copyright law, there is a great deal of uncertainty about what is and is not a derivative work and it’s an issue that shows up again and again in copyright law.
In fact derivative works is an area of copyright law just as muddled and as confusing as fair use, perhaps even more so, even if it isn’t one that comes up quite as often.
So Is It a Derivative?
Sadly, also as with fair use, there are rarely any good answers to this question. The reason is that we often don’t know for certain if a work is a derivative or not until a court has ruled. Though some cases are very clear cut (such as a book entitled Larry Potter) but many cases are much more gray.
If you start a new work based on someone else’s creation (such as with fan fiction), it will almost certainly be a derivative work because that’s the very definition of the term. The question is whether or not one will be caught and if the similarities are enough to be recognized. However, that is less of a legal question and more of a technical one.
Beyond that, the best test available is the one applied in the law. Would a reasonable but non-expert third party recognize that the two works are substantially similar? It’s a difficult, if not impossible, test to apply yourself with any legal certainty but certainly a question you can ask yourself and also ask others.
It’s not much but, under the current law, it is the best just about anyone can do.
In the end, the best thing you can do as a writer is simple: Don’t base your creations on the works of others, at least not without quoting, citing and otherwise behing honest about your appropriations.
On the flip side, when you find that a work seems a little too familiar to you and may be just a derivative work of your creation, it might be best to put it in front of a neutral third party to see what they have to say, at least if the similarities are vague.
However, you can’t simply change a few words or remove a paragraph and expect it to be considered an original creation. The notion of derivative works was created to prevent people from finding easy ways to skirt copyright law by creating “new” works based solely or in large part on old ones.
If someone tries to game that system, most likely, they are going to find themselves at odds with the law at some point.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.