When I speak on copyright and plagiarism, two key questions often arise:  First, how much does someone have to copy to be an infringer?  Second, how much do I risk if I copy someone else's work?  The answers are "not much" and "a lot."

            Here's a tale to illustrate the point.

             THE METER DROPS

 Wade B. Cook is a former taxi cab driver in New York City.  He did not spend his time watching soaps on a portable TV plugged into the cigarette lighter socket. Instead, he wrote.  In 1995 he published Wall Street Money Machine.  It became a best seller. 

             Cook's book included two distinctive concepts.  Based on his taxi-driving experience, he created an investment strategy called "meter drop."  He also wrote about a concept he called "rolling stocks," which are stocks that roll up and down in predictable waves.  Cook built a seminar business on his book and ideas.

             Wall Street Money Machine attracted the attention of motivational speaker Tony Robbins.  Robbins read the book, attended seminars, and spoke to Cook about his ideas.  They talked about joining forces for a financial seminar, but nothing came up it.

            Instead, Robbins developed a new financial seminar on his own.  His team put together a 52,000 word workbook, over 300 pages long. 

            Robbins' financial seminar generated $3.7 million in gross revenue.  Experts later calculated his net profit to be about $675,000.

           THE PROBLEM

            Robbins' workbook contained two passages derived from Cook's materials. Here's a side-by-side comparison:

 

Wall Street Money Machine Workbook

by Wade Cook

 

Money is made on the Meter Drop.

 

No one I know has come up with a name for the type of investing I call "Rolling Stocks." It works on stocks that roll up and down in repeated waves. . . Some roll fast and some slow.

 

Rule#1: You have to know your exit before ever going in.

 

Rule #2: Don't get greedy.

Financial Power Workbook

by Anthony Robbins

 

The ring toss/meter drop.

The most money is made on the _________.

 

A rolling stock is a stock that tends to consistently roll up to a specific price point and then drop down to a specific price point in an obvious pattern (repeated waves).  Some of these companies roll fast (4-6 weeks) and some roll slow (8-10 weeks).

 

Rule #1: You have to know your ______ before going in.

 

Rule #2: Don't get ______!

 The case went to the jury to decide if these 74 words from Robbins' workbook infringed Cook's copyright.  Many who hear this tale are surprised at the result.  The jury found that Robbins had copied Cook's work and awarded over $650,000 in damages. 

 While the result may be extreme, this situation is not unusual. Think of how often some writers, speakers and others “borrow” materials from another source. Many times there is no reference to the author. Other times, they forget where the material originated. Some even begin to believe the material is their own.

 FAIR USE

             So when can you use another's work?  How do you avoid the fate of Anthony Robbins?

 Not all copying is infringement.  Some instances of copying are permitted as "fair use."

 "Fair use" is an exception to the exclusive rights of the copyright owner which permits copying for purposes such as commentary, news reporting and education.  Whether a particular use is permitted depends on consideration of four factors:

·         The nature of the infringing work.  Uses that transforms the original into something new are more likely to be permitted.  Non-commercial use is more likely to be permitted than a commercial use.  Thus, corporate training and for-profit seminars do not usually support a fair use claim.

·         The nature of the original work.  Factual works receive less protection than expressive works such as poems or songs.

·         The amount of the taking.  The quality and quantity of the taken are important.  Even a small taking may be an infringement if it is qualitatively important and 'goes to the heart" of the original.

·         The effect on the market for the original.  An infringement is not likely to be permitted if it supplants market demand for the original.

Determining fair use in a particular case can be very difficult.  Some examples of uses allowed as fair use include:

·         A hip-hop parody of Roy Orbison's song "Pretty Woman"

·         The use of thumbnail copies of Grateful Dead posters in a history book about popular music culture

·         A portion of a photograph used in a collage by the artist Robert Rauschenberg

Uses that were not permitted include:

·         George Harrisson's song "My Sweet Lord" which was found to be too similar to the song "He's So Fine"

·         A parody about O.J. Simpson based on "The Cat in the Hat."

·         Video clips of Elvis in a documentary

When in doubt, the best course of action is to seek permission from the owner of the original or a non-infringement opinion from a qualified attorney.    That way, you can avoid having the meter drop on your creation.