Speaker 1: Max Levine here from the Law Offices of Max Levine here with video number three in our series on copyright law. As always, these videos are not legal advice. If you want help with your specific situation, come talk to a qualified attorney. So today we're talking about what's not protected by copyright law, and this is an important question for some of you, and I'll give you an example. So let's say you're a videographer, and you're talking with a client, and you come up with an absolutely amazing idea for a commercial for this client. And you're discussing it with that client, and they agree it's going to make them millions upon millions of dollars, and they say, that's awesome, send me over your proposal. And you send over a proposal, and the proposal describes your services pretty generally, and it names a price tag. Now all of a sudden, the client doesn't like that price tag, and they stop talking to you. And in fact, they hire another video production team, and that team makes a video for that client that's based largely on the concept that you discussed with that client. It's based on your idea. Now the question is, is that copyright infringement? Unfortunately, in that case, the answer is no, for reasons that we're about to discuss. So it's really important that if you are making some things that copyright law does apply to, so for instance, videos are clearly something that are protected by copyright law. There may be stages or situations in your professional life where copyright law does not protect you. So that's what we're going to discuss today. Okay, so let's talk about things that are not protected by copyright law. In the example we just gave, one of the major issues comes up, which is that ideas themselves are actually not protected by copyright law. So if you watched our last video, which was pretty boring, you'll remember that copyright law only applies to original works of authorship that are fixed in a tangible medium of expression. That's kind of the golden rule of copyright. So copyright law applies to particular works, particular things that are fixed in a medium of expression. So a particular novel, a particular video, a particular sculpture or photograph. But it does not apply to an idea for a photo shoot or a video or an idea for a sequel or a movie. So concepts, photos, podcasts, solutions to problems, basic plot lines, things like that are not protected by copyright. Classic example, it's 2011, you go to a movie theater. You have to decide between watching Friends with Benefits or No Strings Attached. Okay, these two movies that come out at the same time. And it's a difficult decision. Number one, both of these movies are absolutely awful. And number two, they both have the same exact plot line. Okay, they start as friends and they both want to sleep with somebody and then it turns into something more. Okay, and because you're the person who's sitting here watching this video, your twisted brain starts to wonder, wait, is one of these movies infringing on the copyright of the other one? And they are the same exact idea, right? No, the answer is no. Copyright law protects specific expressions of creativity, but not the ideas themselves. Because both of these movies are different original works of authorship, fixed intangible mediums of expression, and because the originality requirement is so low, something we discussed in our last video also, you're now stuck with this awful box office decision and whoever you pay to watch that crappy movie gets to keep that money. There's no infringement there because copyright law does not protect ideas themselves. So you got to be careful when you're talking about ideas with your potential customers. Your originality, those ideas themselves won't be protected at all by copyright law if it's just a conversation. And it really won't be protected much until you fix that idea into something concrete like a treatment or proposal with specific creative elements. Even then, if they do something with that, we're going to have to talk about how complicated that gets. But the bottom line is it's important to remember that your creative ideas themselves are not protected by copyright law. Similarly, copyright law does not protect facts or discoveries. Those aren't things that you create. They're not original. They do not originate in you. They can't be protected by copyright law. So you may make a discovery, a scientific discovery, not going to be protected by copyright law. You may create a list of facts, a database. Those facts themselves, someone else can use them even if nobody else had access to them until you compiled them. The facts themselves, the information is not protected by copyright law. It's important to know that physical objects that may embody your copyright themselves may not be protected by copyright law. So two examples, I write a book. I self-publish that book. You buy a copy of that book from me. I still own the copyright to that book, but you own the physical book. You get to use that, read that, resell it, but you don't get to copy that material and publish it. You don't get to write a sequel to my book just because you bought a copy of it because I still retain the ownership of the copyright, the abstract material that is embodied in that physical object. Similarly, if you buy my painting or a copy of a photo that I took, you own the physical object, but unless we agree otherwise, you don't own the copyright to it. And that becomes very important in some cases. Another thing copyright law does not protect is useful articles. So copyright only protects creative elements, not functional things per se. And it basically only protects the creative elements if you can somehow distinguish them, separate them out from the function of the thing. To protect a functional thing, you're generally in the world of patent law. Sometimes you're not even there. But a good example is clothing design, where the creative element is usually inseparable from the function of the garment. That's generally not subject to copyright. And this is one of the reasons where you see knockoffs, even in the legal world, so frequently. And it's also one of the reasons why trademark law for logos is so important in the clothing realm. Similarly, like let's say you write instructions to a useful thing like games or software. While literary works generally means anything written, and copyright law usually applies to literary works, if it's a set of instructions that's not highly stylized, there's no creative element there, that may not be protected by copyright law. Again, though, the design of a lamp base can be protected by copyright, because at least theoretically, you can abstract out that design from the function of the lamp base, which is basically just to hold down the lamp, right? There the aesthetic elements can be separated out from the function. Another thing that's important to know that is not protected by copyright law is infringing works. Okay, so actual story, this guy named Anderson, he sees the movie Rocky, and he writes up a 31 page treatment on a sequel to Rocky. And he actually ends up talking with Sylvester Stallone's people with his production company, and they're in negotiations maybe to use this script, this treatment or not. And in the end, they stopped talking to him, they go make Rocky 2. And he sues them and says, one second, this is exactly the plot line that I wrote for you guys that was contained in my treatment, you're infringing on my copyright in that treatment. There's one problem with that. He had no right to make that treatment, right? It's a derivative work, sequels and treatments, you know, a written treatment is a derivative work from the original movie Rocky, it's using the same characters, the same creative elements, and he didn't have a right to create that work. So when he sued, he very rapidly lost, because his work was an infringing work, and copyright law does not protect infringing works. And finally, probably the most important thing you need to know is that copyright law does not protect your citing of Elvis. No joke, if you go to copyright.gov, and you look for frequently asked questions, they have a little flyer on what does copyright law protect? I think the 10th or 11th question is, how do I protect my citing of Elvis? Copyright law does not protect sightings. However, copyright law will protect your photo or other depiction of your citing of Elvis. No one can lawfully use your photo of your citing, although someone else may file his own photo of his citing. Copyright law protects the original photograph, not the subject of the photograph, which of course here is reincarnated Elvis. So stick with us, we're going to talk about some more practical elements of copyright law, including, we're going to talk turkey, what you really need to do to have copyright law on your side in our next video. So again, Max Levine with the Law Offices of Max Levine, talking about copyright law.