Anyone who has worked in an intellectual or creative endeavor knows that many new works build to one degree or another on the earlier work of others. But getting a head start by leveraging the intellectual work product of another is potentially problematic. When does inspiration cross over into infringement or a breach of scholarly integrity? The lawyer’s answer 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. It depends on what, and on how much, you took from the source material. And it depends on the nature and purpose of your writing.
If you are producing work for education or trade markets, you can be inspired by and reuse ideas, facts, or style of another’s earlier work to form a new work without infringing a copyright. This is because 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 she structures the material and marshals facts, the choice of words, and the emphasis on particular events.
But having to defend a case, even if you prevail in the end, is expensive and distracting. Here are 7 practical pointers and guidelines that will put you in a position to deflect or defend against claims that your work borrows impermissibly from the earlier works of others:
1) Consult a number of sources, not one, and keep a list of the works you consult. To the extent that you have a record of having consulted multiple works and to the extent that the cited similarities between your work and an accuser’s work are also present in some or all of the other works you consulted, it will be less likely that those similarities will support an inference that you copied impermissibly from any one of them.
2) Take skeletal notes-just the facts and abstract ideas-and keep these notes. Working through this intermediate step will make it less likely for you to pick up protected expression from a source work inadvertently. Also, to support your memory, if you are doing scholarly work, record the source (author and publication) for each concept or finding in your notes for proper attribution later.
3) Set the source works aside and work from your notes. This will help you avoid inadvertent appropriation of protected expression.
4) Keep a contemporaneous log of your writing activities and how much time you spend developing your manuscript (the less time it takes you, the more likely it is that you took inappropriate short cuts). The contemporaneous notes are business records admissible as evidence in support of your recollections about how your work was created. And evidence that you took these precautions and that you did not generate your manuscript in an unreasonably short period of time will help you defeat an inference that your work was the result of impermissible copying.
5) Keep your interim drafts, for the same reason.
6) Saul Bellow said it: “You never have to change anything you got up in the middle of the night to write.” And I think it’s safe to say that whatever wakes you in the night and moves you to start writing is very likely sufficiently removed from whatever inspired you to make infringement unlikely as both a practical matter and a legal matter. For everything else, watch your step.
7) If your work is online and the work you wish to extract is also online, consider linking to the work you’d like to reference. Linking merely directs your reader to the third-party material at its source and does not result in an exercise of any of the rights belonging exclusively to the copyright holder. It also supplies unassailable attribution, since your source is fully disclosed.
*The foregoing is an extract from Steve’s book, Guide to Rights Clearance & Permissions: in Scholarly, Educational, and Trade Publishing, available here.