Inspiration versus Infringement

K

KatyAdelson

I Love YTtalk
Staff member
Hi Everyone,

Where do you think the fine line is drawn between being inspired by something versus infringing on another person's copyrights?

I realize that there are "derivative works" which are ideas spun from an original work, and all derivative works need permission from the copyright owner before their distribution. I'm wondering more about "using a concept" from a copyrighted work ("concept" might not be the right word...but it's the only one I can think of right now..) for your own content. Would this need to always be considered a derivative work? Are there a certain amount of changes that need to be made for it to be considered an original work?

For example, there are a lot of videos about how to do one's makeup to look like Elsa from Frozen, or bake a cake that looks like the Mario Star. These videos are using copyrighted characters from popular culture, but would you consider this inspiration or infringement? There are a lot of infringing videos on YouTube, and it gets difficult to distinguish between the two. Elsa is not technically made from makeup, and the Mario Star is not a cake, but I would still consider both to be a form of infringement (although not as infringing as using direct footage and images from the movie/game).. I'm wondering what you guys think!

A bit more on the extreme side, for a video, if I were to wear a homemade T-shirt that looked similar to Mickey Mouse, would I technically be infringing on Disney copyright's since it is "displaying" something that may subjectively look like Mickey Mouse? (I only start to understand things once I understand extreme circumstances... : P)

Since I play music, I have a related question regarding music. A cover song is a replica of an original work, and I understand the copyright issues with that. However, how much can one be inspired by a song in popular culture (such as the musical style, grouping of instruments, key signature, chord progressions, time signature, rhythm..etc), but change the melody into something new without any copyright infringements or without being considered a derivative work? All radio hits use the same 1-4-5 chord progressions, so there has to be some leeway with this somehow in the legal world.. Can one say "Song inspired by the popular movie 'such-n-such'" without problems, or is that pushing the limits too far?

I've been really wanting to talk to an entertainment lawyer to straighten out all the details about how deep copyrights protect ideas, but I thought I'd see what you guys think!

Thank you!
 
Just to provide some clarification, a derivative work by it's definition is a new entity in copyright and does not require permission from the source material owner. Now, it may require a court battle to determine whether it is derivative, but that's just the process in action.
 
Tarmack said:
Just to provide some clarification, a derivative work by it's definition is a new entity in copyright and does not require permission from the source material owner. Now, it may require a court battle to determine whether it is derivative, but that's just the process in action.
Click to expand...

I thought for sure we had to get permission.. I found this little pdf on copyright.gov
htt#p://copyright.gov/circs/circ14.pdf says (pg 2)

"Right to Prepare Derivative Works
Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaption of a work may constitute copyright infringement."

I've always thought we needed to get direct permission unless it's something in the creative commons or public domain. A derivative work is like a new arrangement of an existing song, but I'm curious how much of it needs to change before it's considered a brand new song that's free of copyright issues...?

It's easy to scoot notes around a bit - same chords, slightly different melody - it sounds very similar, but you can't exactly call it an arrangement..I guess it really is up to the courts to decide these things.. =/
 
I actually misspoke at least twice in that post. My apologies. I blame lack of coffee this morning.

Yes, you are correct that derivative works are intended to be done under an authorization, however unauthorized derivative works are possible through the fair use defense. If your content is sufficiently transformative as to be considered fair use, then an unauthorized derivative is entirely legal and maintains its' own copyright protection under law.

You need to remember that YouTube rules do not match court rules. The copyright owner has the trump card in the matching algorithm and you can only win that battle if you're willing to fight it.

Now that said, I would venture that the vast majority of all music is "inspired" in the way you're referring to. It is entirely possible to compose a song, thinking it is new material only to be informed later that you copied someone. Doesn't mean that you actually copied them, but it may sound that way. You're not going to get in trouble for using the basic chord progression of Pachelbels Canon in D for example, a song pattern replicated by literally hundreds of songs since. You do not need permission from the original artist of a song that inspires you. If you're going to try to get away with using their material, then there are risks associated with that. You're over thinking it, honestly.
 
Low on coffee is never a good thing! Actually..I need a big ol' cup of coffee to wake me up....Just left a bag of chocolates melt in the car. Whoops! x_x

Thank you for your reply! I think you're right..I'm over thinking stuff too much. I'm so overly paranoid and tied up wondering about all of these things that I'm not getting anywhere. haha! : P I guess I'll put making something original, but "inspired," back on my list of ideas and see where it goes.
 
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