Copyright on Assessments

[themeister]

What is the name of your state (only U.S. law)? CA

What is the name of your state (only U.S. law)? CA

Thank you for your time in answering this.

I am writing a book and have a chapter that includes several assessment tests for skills, aptitudes, preferences, values, etc. I have been in the field of assessments for years in working with people, and have compiled several tests of my own within the chapter. I realize that my tests cannot help but be influenced by the others I've worked with over the years and, in some instances, even seem very similar in wording to other tests that are copyrighted in the market...though mine are in no way exact recreations.

Can you explain to me how copyright law works in the sense of whether it applies to general ideas as opposed to exact/obvious plagiarizing of another's work? For example, if there is a list of 10 concepts that another organization has put out and I have a list of 10 concepts that are similar but not expressed in the same wording, is that grounds for copyright infringement?

Thank you for your insight on this.

Signed,

Inquiring AssessorWhat is the name of your state (only U.S. law)?

 

[quincy]

First, ideas themselves cannot be copyrighted. It is the way an idea is expressed that is copyrightable.

The fact that ideas are not copyrightable is why you can see several different assessment tests developed by several different people, all designed to assess skills, aptitudes, values, preferences, etc. The idea for an assessment test is not subject to copyright protection.

However, how an assessment test is put together (its sequence, the wording, the particular selection of factors used in the testing) can be copyrightable. Although some elements of an assessment test may be common to all assessment tests (just as an alphabetized listing of names is common to all phone books), what is not common to all tests can be subject to copyright protection (just as special fonts and layouts and maps can make phone books copyrightable).

If you have created a list of ten concepts that are based on or influenced by a list of ten concepts that someone else has created, then what you have potentially created is a derivative of the original, copyrighted work. The right to make derivative works is one of the exclusive rights granted a copyright owner for an original work. With derivatives, you must get permission from the copyright holder of the original copyrighted work in order to publish and distribute your own work.

It is impossible to say from this distance and without a review of the materials in question whether your test can be looked at as a derivative of an earlier work, or whether it can be seen as infringement on the earlier work. The closer your work is to another's work, and the more you have relied on an earlier test to develop your own test, the more likely it is to be a derivative and/or protected by the original work's copyright. To make and market a derivative without permission from the copyright holder would be copyright infringement.

Because copyright infringement suits are expensive to defend against, and even more expensive to lose, you would be wise to have the chapter in your book that you have devoted to assessment tests reviewed by an IP attorney who specializes in copyright law.

It is also wise to have an attorney review your entire book prior to publication, to make sure your work does not attract any other sort of lawsuit. Taking out liability insurance to cover your book in case a suit arises from its publication is another good idea.

Good luck.