Use Source Works Safely

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October 2013
by Steve Gillen

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Maybe it was something you saw in a magazine or at a bookstore. Maybe it was something you saw online. Maybe it was something that caught your eye in an unsolicited query letter or proposal—a good idea in poorly skilled hands.

In any event, wherever you first saw it, it inspired you to develop and publish your own book on the subject.

Of course, many new works build to one degree or another on the earlier work of others. But getting a head start by leveraging someone else’s intellectual work product can be problematic. When does inspiration cross over into infringement? The lawyer’s answer, as you might expect, is: It depends.

It depends on how you obtained access to the source material. It depends on whether the source material is fiction or fact-heavy. And it depends on what, and on how much, you took from the source material.

You can be inspired by and reuse ideas and facts from someone else’s earlier work to form a new work without infringing a copyright. These elements of a work are not protected by copyright—not “owned” by the copyright holder—and thus they are available to be reused and recast into new original expression. What is protected is the manner of expression: the author’s analysis or interpretation of events, the way the author structures the material and marshals facts, the choice of words, the emphasis on particular events.

Amistad: A Source Works Case in Point

In the summer of 1839, kidnapped Africans on La Amistad, a Spanish schooner that was transporting them into slavery in the United States, took control of the ship. Before they could complete their escape, they were captured, and subsequently they were put on trial. Their case went to the U.S. Supreme Court, which ultimately set them free. Their story has been depicted in a play, the historical novel Echo of Lions by Barbara Chase-Riboud , and the Steven Spielberg movie Amistad.

No one can own history simply by being first to write about it. But Chase-Riboud filled gaps in the historical record with fictional scenes and characters in her book, published in 1989. Production of the Spielberg movie was announced in 1996. One year later, the book author sued, claiming that the Spielberg movie appropriated nine of those gap-filling inventions and embellishments.

The California district court hearing the case noted that, because both the book and the movie were based on the same historical events, the plot, settings, and sequence of events were inherently similar. The court also observed that the dialogue was not similar and that the mood and pace were different. Ultimately, the court was not convinced that the nine gap-filling inventions and embellishments the book author claimed had been copied by Spielberg actually involved protectable expression.

But having to defend a case, even if you prevail in the end, is expensive and distracting. What do you need to know, and what steps should you take to avoid being sued or to prepare yourself to respond to a claim, with an eye toward keeping it from ever getting to litigation?

Two Threats

To begin with, you should understand the nature of potential claims, because the circumstances that give rise to each of them are different, as are the available remedies and the defensive steps. The most likely claim is for copyright infringement—that is, a claim that you took more than you should have from someone else’s copyrighted work. The other, less likely, claim is for breach of a contract implied in fact or in law. This claim focuses on how you got access to your book idea and whether it was under circumstances that created a reasonable expectation of compensation for any exploitation.

What Counts as Copyright Infringement

Since copyright is a bundle of rights that belong exclusively to the copyright owner, and since one of those rights is the reproduction right, you cannot make a verbatim copy of someone else’s copyrighted work without that person’s consent. But another one of those exclusive rights is the adaptation right—the right to adapt a work or make derivatives of it—so copying does not have to be verbatim to be infringing.

If you have had access to a copyrighted work, and if you then prepare a similar work on the same or a similar subject, you have opened the door to a copyright infringement claim—a claim that your work is an unauthorized derivative of the source work—that you started with a copy of the source work and, although you may have made changes to it or added work of your own, the resulting work still includes a material amount of protected expression from the original.

Copying is an essential element of copyright infringement. Sometimes there is direct evidence of copying—an admission, or a witness, or some unique turn of phrase or other element reproduced in the accused work that could not have gotten there other than by copying. But more often copying must be established by circumstantial evidence—evidence of access to the original coupled with an accused work that is so similar to the subject work that the similarities are unlikely to have been coincidental. In other words, evidence of access plus substantial similarity permits an inference of copying.

The stronger and more compelling the evidence of access, the less similarity is required to support the inference of copying. In the Amistad case, there was evidence that the book was pitched to the person who subsequently became the scriptwriter for the Spielberg movie. But evidence that a book was published and widely distributed and promoted can also serve as evidence that access was more likely than not.

Copying must be established on two levels. First, it must be established as a fact. This step permits consideration of similarity with both unprotected and protected elements.

But to establish actionable infringement, the copying must have included a material amount of protected expression—literary devices, plot devices, scenes, character descriptions, and the like.

Although similarity of reported facts and ideas—answers to the journalist’s questions of who, what, when, where, and why—can help establish copying as a matter of fact; by itself it will not be infringing without evidence of appropriation of protected expression. This is why fact-heavy works are generally accorded less protection than works of fiction.

The scope of protection is much broader for works of fiction, encompassing not only the literal words on paper but also the original plot lines and well developed characters in them, because the public’s interest in free access to facts and ideas is not a factor for fiction So if you are producing a book about a celebrity who is principally known as a character in a film or television series, you won’t be safe if you just avoid including portions of the scripts from the film or series. You must also be careful not to reproduce a description of the plot or character traits from the film or series so detailed that you have effectively appropriated a significant portion of the producer’s creative labors.

There are no bright-line tests here. The circumstantial case is just that: circumstantial. It is based on establishment of certain premises that permit the court or the jury to infer that they are connected in a particular way. The final decision about whether each of the necessary premises has been established and to what extent, and about whether the combination of them is strong enough to permit the inference of actionable copying, is unavoidably subjective. Therefore, the final outcome can almost never be predicted with absolute confidence.

But if, by following the best practices set out below, you can at least make it a close question, then you will have reduced the likelihood of a fee award in favor of the plaintiff even if you lose the suit, and that often makes plaintiffs see pursuing litigation as economically unviable.

When Is It “Fair Use”?

Even if your work incorporates a material portion of the protected expression of the subject work, your use may be defensible as a fair use. A complex exception to the monopoly power vested in authors by the copyright law, the Fair Use Doctrine is intended to protect the right of reasonable public access to copyrighted expressions for limited purposes.

The copyright statute says “fair use” of a copyrighted work without permission for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.

Whether the use is “fair” is determined by considering four factors:

1. the purpose and character of the use, including whether it is of a commercial nature or is for nonprofit educational purposes

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. the effect of the use upon the potential market for or value of the copyrighted work

Whether a given use is fair is a mixed question of law and fact determined by the courts one case at a time. There are no bright-line tests here either for how much you can take or for what purposes you may use it. For more about this complex and nuanced exception to the copyright owner’s monopoly powers, see “Fair Use and Other Aspects of Coping with Copyright Law” (June 2011) via Independent Articles at ibpa-online.org.

How Access Might Matter

Under certain circumstances, a claim against you may be for breach of an implied contract. The elements of this cause of action are different from those of a copyright infringement claim.

This could happen if you obtained access to the subject work under circumstances that might create a reasonable expectation that you would exploit it only in exchange for compensation to its owner. With this cause of action, it may be enough that you appropriated the idea; it is not required that you also took protected expression.

More specifically, accepting and reviewing a query or proposal, whether solicited or unsolicited, might give rise to such an expectation. “Submission-of-idea” claims are creatures of state law with elements that vary from state to state. Some states require that the submitted idea be absolutely novel (i.e., not previously known to anyone other than the discloser). Some require only that it was not already known to the recipient.

Recognizing, as noted, that much creative work is inspired by the earlier work of others, you can prepare to deflect or defend against claims that your work borrows impermissibly from the earlier works of others by adopting some best practices and/or recommending them to your authors.

● Consult a number of sources, not just one, and keep a list of the works you consult. The line “Copying from one source is infringement; copying from multiple sources is research” is not literally true, of course. It is certainly possible to infringe multiple works in one project. But to the extent that you have a record of having consulted multiple works, and to the extent that cited similarities between your work and an accuser’s work are also present in some or all of the other works you consulted, the inference that you copied impermissibly from any one of them will be harder to support.

● Take skeletal notes—just facts and abstract ideas—and keep these notes. Working through this intermediate step will make you less likely to pick up protected expression from a source work inadvertently, as writers may when they take detailed notes from source materials, set them aside for other projects, and return to them months or years later, having lost track of where they came from or how closely they were copied or paraphrased.

● Set the source works aside and work from your notes. This will also help you avoid inadvertent appropriation of protected expression.

● Keep a contemporaneous log of writing activities and time spent developing your manuscript (the less time it takes, the likelier inappropriate shortcuts may seem). The contemporaneous notes are business records admissible as evidence in support of recollections about how your book was created. And evidence that publisher and/or author took these precautions and did not generate the manuscript in an unreasonably short period of time will help you defeat an inference that your book was the result of impermissible copying.

● Keep your interim drafts, for the same reason.

● Depending on your risk tolerance, the nature of your publishing program, and your history with misappropriation claims, you might consider not taking unsolicited submissions, or having them screened by someone not involved in the editorial development of other projects.

● If you get inspired by someone else’s copyrighted work, you might consider assigning development of your related project to a person who was not exposed to the material that inspired you.

As Saul Bellow said, “You never have to change anything you got up in the middle of the night to write.” I think it’s safe to say that whatever wakes you in the night and moves you to action is probably removed far enough from whatever inspired you to make infringement unlikely as both a practical matter and a legal matter. For everything else, watch your step.


Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for 30 years. A member of IBPA, he contributes often to the Independent. To learn more: sgillen@whe-law.com; 513/241-2324, ext. 470.

 

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