Submitted by New Media Rights last modified Thu, 07/23/2015 - 11:25am
If I recopy someone elses work using my own time and money, can I get around copyright law?
No, unfortunately you generally can’t remake a work, even if you do it from memory, to avoid copyright laws. When a court looks at a case of alleged copyright infringement, one of the major questions is whether the person accused of copying had had access to the work that is claimed to be copied. So even if you completely remade the work from the ground up, if you had access to the work, there is a persuasive case for infringement.
The reason your work wouldn’t be protected is because it doesn’t meet the basic originality requirement for copyright protection. Now, you may argue that since you’ve spent a lot of your time, effort and possibly money recreating the work so you should be entitled to copyright protection to. The problem is that people have use that argument before in court and they’ve lost.
Saying your work can be protected just because you put a lot of time into making it is called the “sweat of the brow” doctrine and U.S. law has directly rejected this idea. It makes sense that even if someone else repaints a painting, or rewrites a book or play from memory, then that person would still have to compensate the original author.
Complications to the sweat of the brow doctrine
The United States Supreme Court officially put the nail in the coffin of the sweat of the brow in case Feist Publications v. Rural Telephone Service. In that case, the Rural Telephone Service Company was obligated to provide a free telephone directory to the people of Kansas. Since Rural had already made a directory, Feist decided that instead of doing research on its own, Feist copied about 4000 entires from Rural’s phone book into its own phone book.
The court first re-established that facts and utilitarian information is not copyrightable. Since all of the entries were copied were just facts, no matter how much time that Rural put into laying out their phonebook, they would have a difficult time using copyright law to prevent anyone from copying it.
The Supreme Court determined that since the Rural phonebook was arranged and presented in alphabetical order, there wasn’t even any originality in the selection and arrangement of the book. So in this case, everything was so "simple and obvious" about the work that it could be copied by anyone.
Parallel independent creation: a “sort-of” exception to this general rule
A major “sort-of exception” to this general concept is parallel independent creation. Copyright laws protect your specific expression of an idea, but interestingly enough, it doesn’t prevent someone else from independently generating that same expression.
For example, imagine you are a poet in Brooklyn, New York, and you’ve just finished your 10-line masterpiece that you’ve been writing everyday at the coffee shop for the last year. Meanwhile, at a bar 3,000 miles away in California, Average Joe writes that same poem, word for word on the back of a napkin while waiting for his drink. Since both of you independently thought of that poem and generated the expression without ever being influenced by the other’s work, both of you would get full copyright protection in your poem. It wouldn’t matter who wrote it first.
The sweat of the brow doctrine is both simple and extremely complicated once all of the rest of the copyright law interacts with it. If you have a specific question about when you can or can’t copy something, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.