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Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3467
Experience:  Experienced in intellectual property law
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What constitutes copyright infringement? If I find someone

Customer Question

What constitutes copyright infringement?
If I find someone else's explanation answer to a question, and I read that explanation, and then develop my own explanation perhaps with different wording will that be a fair use or non infringing use, or is it pretty much exactly the scenario type that copyright law is there to prevent?
Submitted: 8 years ago.
Category: Intellectual Property Law
Expert:  Alex Reese replied 8 years ago.

Copyright infringement occurs when copyright protected material (original and creative work) is copied either exactly or with substantial similarity. Copyright does not protect concepts or ideas, but rather, only the expressive elements of a work. So it depends on if you are copying the expressive/creative elements of the work. also, the amount you "copy" matters to, relative to the work itself as well as your work.

for more info on copyright protection & infringement, see http://coursecracker.com/4/7487/College/Law/Intellectual-Property-Law/links/index.html

Customer: replied 8 years ago.
Well, here is what I am trying to do but not sure whether it is legal. I have licensed and am licensing practice exam questions for state licensure exams (eg R.N., OTR, etc..) and know which answers are correct from the provider. Other competing exam review courses provide the same exact questions (legally licensed just like mine) but they have developed their own explanations as to why each response is correct (or incorrect). I am wondering whether I can simply read their explanations, and then write my own explanations to make my product more competitive?

I wonder if my explnations would be a derivative work based on their explanations, or if both mine and their explanations are derivative works based off of the original questions which are identical and licensed from the same originating source?
Expert:  Alex Reese replied 8 years ago.
Well there is a spectrum, on one end if you copy them exactly its infringement and on the other end if you read it and put it all in your own words then its not.....in between is going to depend on the specifics. Facts, concepts, and ideas are not protectable but the expressive/creative writing is, so you have to put things essentially in your own words. esp. if you are doing it on such a large scale where you are essentially writing your own version of each explanation because they can argue "substantial similarity"....its all a matter of degree of what/how you are using the work, there is no simple answer here, and even if an attorney sat down and reviewed your work versus the original and gave an opinion, that is far from definitive, opinions vary. So you should err on the side of being safe and really put things in your own words and borrow as little as possible to avoid problems.
Customer: replied 8 years ago.
I like your spectrum idea. I guess my remaining question is this, does the spectrum really practically apply only to the question of whether there is infringement or not from a legal perspective?

Because it seems like whether or not my expressions were substantially similar, I would know that they are a derivative work in that I derived my explnation from their explanation. Perhaps that derivation is not what is contemplated by copyright law regarding derivative work.
Expert:  Alex Reese replied 8 years ago.

A derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work....but whether it is a "derivative work" or just an infringing work doesn't really matter from your standpoint because you don't want to do either, they are both infringement. But you can't have a derivative work without substantial similarity or some key elements being copied.

the spectrum is a way to think about infringing acts but the main test is whether you have copied/borrowed the expressive elements of the work and to what extent, so you should use your best judgment on that e.g. are you putting it in your own words or essentially plagiarizing?

Expert:  Alex Reese replied 8 years ago.
Does that answer your question? please click "accept" so that I can receive credit for my answer. best of luck
Alex Reese and other Intellectual Property Law Specialists are ready to help you
Customer: replied 8 years ago.
I think it does answer my question may I follow up with you later in the week?
I really don't get to think about this project much unless its evenings or weekends.

Thanks.
Expert:  Alex Reese replied 8 years ago.
just ask for me in the title of your next question or better yet specifically request me (there is a feature for that)