Am I Committing Copyright Infringement by Taking Inspiration from Another’s Work?

In a world with no shortage of inspiring literary works, authors often ask where the line is drawn between being “inspired by” another person’s work and copyright infringement. The answer is complex and requires an understanding of how copyright works.

Generally speaking, the federal Copyright Act provides protection to authors that is limited to the author’s lifetime plus an additional 50 years following the author’s death. After that, the work becomes part of the public domain, allowing it to be used freely.

If a work is not in the public domain, determining whether copyright has been infringed can be complicated. Subject to certain exceptions under the Copyright Act, if a person republishes a copyrighted work, that republication would be an infringement.  However, when authors are simply inspired by another’s work, that is an entirely different situation.

What does copyright protect?

The most important aspect for creators to understand is that copyright protections are limited to the expression of ideas and not the ideas themselves. As such, this leaves room for authors to be inspired by the ideas of others and use them in creating their own works.

For example, an idea for a story is not protected by copyright, but if an author takes that idea and expresses it in a written work, the written work embodying the idea is copyright protected.

Copyright protection extends automatically to the expression of ideas in a material form. “Material” expressions may include literary works, artwork, songs/poetry, news articles, architecture and design, computer code, performances, radio broadcasts and numerous other forms of expression. Copyright protection is automatic in that an author of a work is not required to take any additional steps to secure its protection. For example, from the moment an author writes down an original idea on a piece of paper, the writing is copyright protected.

Despite copyright protection applying to works automatically, authors receive additional protections by registering their works. Should there ever be a dispute regarding a work, having a registered copyright can be a powerful tool to enforce an author’s rights.

For those interested in learning more about the basics of copyright protection, we will be writing a future blog post on the subject.

Does my work infringe?

Unfortunately, there is no black-and-white answer to this question. Courts must first determine whether a “substantial part” of a copyrighted work has been taken.

What is a “substantial part”?

In Robinson v Films Cinar inc, 2013 SCC 73, the Supreme Court of Canada provided five guiding principles to determine whether a “substantial part” of a copyrighted work has been reproduced. This is a multifaceted analysis, with no single factor necessarily determining copyright infringement.

1) The quality and quantity of the material taken

Courts have emphasized that infringement is qualitative and not quantitative. For example, single images or small amounts of text may infringe copyright if the copied feature represents a “substantial part” of the skill and judgment used to create the underlying work.

Copyright may also be infringed by “colourable imitations” — elements that are altered but recognizable against the original. When the differences within a new work are too great for the new work to be considered an imitation, courts have held that there is no infringement.

As such, when taking inspiration from another person’s copyrighted work, it is important to take the utmost care in distinguishing your characters, geography and narrative elements from the original work.

2) The adverse impact upon the copyright holder

Courts will consider evidence of an alleged infringement negatively impacting the copyright holder. Such evidence must show that the alleged infringement diminished the value of the claimant’s copyright.

3) Whether the material taken is the proper subject matter of copyright

Whether an allegedly infringed work is subject to copyright is fundamental to any copyright infringement dispute. For a work to have copyright protection, it must be “original.” In CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, the Supreme Court of Canada held that “original” works must be the product of skill and judgment, and more than a purely mechanical exercise.

4) The purpose of the alleged infringement, and whether it was made to save time and effort

The main purpose of the alleged infringement must also be determined. When courts find that the purpose of an alleged infringement was to save time and effort, they will weigh this in favour of infringement.

5) Whether the material is used in the same or similar fashion as the plaintiff’s

This factor concerns how the alleged infringer is using the copyrighted work — for example, whether materials from a book were reproduced in another book. This assessment is primarily concerned with reproduction that would stifle the incentive for creators to create, such as reducing the marketability of a copyrighted work.

Non-literal infringement and “colourable imitations”

The form of a work is only a single factor in determining whether a “substantial part” has been taken. The Supreme Court of Canada decision in Cinar v Robinson is a great example of this.

In this case, the plaintiff author had met with the corporate defendant and its directors to pitch an idea for a children’s television series. The defendant originally put off the plaintiff’s pitch due to a lack of interest from investors, but later released a television series that was highly similar to the series proposed by the plaintiff.

Due to the different forms of the two works — i.e. a written work vs a motion picture — the defendant had not engaged in literal copying of the plaintiff’s work. However, the Supreme Court held that there were enough similarities in the defendant’s television series to find that it was a “colourable imitation” of the plaintiff’s work, and thus infringed upon it. Specifically, the Court found that the defendant had copied visual elements and the particular combination of characters with distinct personality traits living together on a tropical island.

However, just because works contain similar elements does not automatically mean infringement. In Evans v Discovery Communications LLC, 2018 FC 1153, an author alleged copyright infringement of his science fiction novel, which featured futuristic technologies and their effects on humankind. The defendant published a TV series featuring futuristic technologies and the ethical implications they gave rise to.

While the plaintiff alleged “non-literal” infringement, he claimed that the show and his novel were “semantically similar.” In a summary judgment, the Court dismissed the plaintiff’s claims for failing to point to specific instances of copying and instead being directed at ideas, which cannot be the subject of copyright. Moreover, futuristic technologies such as those described in the plaintiff’s work were found to be a common theme in science fiction. To make a finding of copyright infringement, the Court held that similarity between works must be more specific than what was alleged by the plaintiff.

Conclusion

Before publishing a work, familiarize yourself with copyright law — especially when you are publishing a work inspired by the work of others. Whether a work is “inspired by” or infringing a copyrighted work is difficult to determine. If taking inspiration from another’s work, it is important to distinguish the inspired elements as much as possible.

The MLT Aikins Innovation, Data & Technology team provides copyright infringement opinions and advises clients on copyright registrations and portfolio management, as well as drafting development, licensing and assignment agreements. Please contact a member of our team for more information.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.