Is this considered derivative work or fair use (ebook)?

[ace.law]

What is the name of your state (only U.S. law)? Kansas.(See the end of this post for more info)

So here is the rundown:
A year ago I studied and passed a certification exam from a testing agency. I was thinking of gathering all the notes, strategies, tips & mnemonic tricks that I came up with and publishing a book for sale on several ebook stores like Kobo, Barnes & Noble, etc. I may also include in the book 50-100 practice questions based on the study material for the final test the end of the book, that once again I came up with just from studying the official textbook. None of these notes, tips, question, etc. exist either on other unofficial guides or as part of their official material(i.e., website & official book).

I do not intend to use their trademarks, logos, etc. and I will expressly state at the beginning of the book that I am in no way, shape or form affiliated with or endorsed by them.

I wanted to ask what one should watch for when writing such a book. Should I check whether each term is trademarked and if so remove it? Am I allowed to use the agency's name on the front of the book(not their logo)?

To give you an idea of what I am trying to do, here are some examples of ebook guides on Amazon and apps on Google store. I have checked many of them and what I have found is that most are not licensed by the respective testing agency.

https://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Daps&field-keywords=exam+study+guide&rh=i%3Aaps%2Ck%3Aexam+study+guide
https://play.google.com/store/search?q=pocketprep&c=apps

(And to further expand on that example, I checked the following guide https://www.amazon.com/ATI-TEAS-Secrets-Study-Guide/dp/1516703839/ref=sr_1_3?ie=UTF8&qid=1487864573&sr=8-3&keywords=exam+study+guide.

If you look inside with the LOOK INSIDE function, you can see on the first page that it is not officially licensed)

In the certification agency's website, it is mentioned that their agreement is governed by the laws of the state of Kansas, I currently reside in France, however.

 

[quincy]

What is the name of your state (only U.S. law)? Kansas.(See the end of this post for more info)

So here is the rundown:
A year ago I studied and passed a certification exam from a testing agency. I was thinking of gathering all the notes, strategies, tips & mnemonic tricks that I came up with and publishing a book for sale on several ebook stores like Kobo, Barnes & Noble, etc. I may also include in the book 50-100 practice questions based on the study material for the final test the end of the book, that once again I came up with just from studying the official textbook. None of these notes, tips, question, etc. exist either on other unofficial guides or as part of their official material(i.e., website & official book).

I do not intend to use their trademarks, logos, etc. and I will expressly state at the beginning of the book that I am in no way, shape or form affiliated with or endorsed by them.

I wanted to ask what one should watch for when writing such a book. Should I check whether each term is trademarked and if so remove it? Am I allowed to use the agency's name on the front of the book(not their logo)?

To give you an idea of what I am trying to do, here are some examples of ebook guides on Amazon and apps on Google store. I have checked many of them and what I have found is that most are not licensed by the respective testing agency.

https://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Daps&field-keywords=exam+study+guide&rh=i%3Aaps%2Ck%3Aexam+study+guide
https://play.google.com/store/search?q=pocketprep&c=apps

(And to further expand on that example, I checked the following guide https://www.amazon.com/ATI-TEAS-Secrets-Study-Guide/dp/1516703839/ref=sr_1_3?ie=UTF8&qid=1487864573&sr=8-3&keywords=exam+study+guide.

If you look inside with the LOOK INSIDE function, you can see on the first page that it is not officially licensed)

In the certification agency's website, it is mentioned that their agreement is governed by the laws of the state of Kansas, I currently reside in France, however.

First, fair use is not permission to use another's copyrighted work. It is an affirmative defense to copyright infringement - an "I infringed but in this case it's okay" defense.

A derivative work is one based on an existing copyrighted work that has enough original material added to it that it becomes a new work.

Making a derivative work is one of the exclusive rights of a copyright holder. The other exclusive rights include the right to reproduce or copy the work, the right to display or perform the work, and the right to distribute the work.

Because derivatives are based on an earlier copyrighted work and creating them is an exclusive right of the copyright holder, to make a derivative requires permission from the original copyright holder.

That said, someone can be inspired by an existing work and create their own original work based on the IDEA of the original. If there is a study guide on the market, someone else can still create their own study guide without infringing on the original work, as long as the new study guide does not take creative material from the original and recast it, adapt it, or modify it - which would make it a derivative rather than a "transformative" work.

A transformative work is one that uses an existing copyrighted work and adds to the existing work new expression or meaning. It adds new information, new insights, new understanding to the original work. It becomes a work of its own. It could be determined by a court to be a "fair use" of the original creative work.

There is a fine line between transformative works and derivative works, and a fine line between fair use and infringement. The specifics really matter. Because specifics matter, a personal review and assessment by an IP or publishing law professional is almost always wise and advised.

As to the use of trademarks, a trademark should only be used in a descriptive manner. One must avoid using a trademark in a way that implies a connection to the trademark holder (an endorsement, a sponsorship, an ownership by the trademark holder). One must avoid using someone else's trademark to promote one's own work, trading off the reputation of the trademark holder to draw consumers to one's own work. It is generally advised not to use another's trademark (name, logo, slogan, whatever) on the cover of a book (although this can, at times, be done with enough disclaimers and with awfully good liability insurance).

Although what you want to do is doable, and has been done in the past without an issue, there are no easy answers for you to your questions on a forum. I again recommend you sit down with your manuscript for a personal review in your area. Good luck.

 

[ace.law]

First, fair use is not permission to use another's copyrighted work. It is an affirmative defense to copyright infringement - an "I infringed but in this case it's okay" defense.

A derivative work is one based on an existing copyrighted work that has enough original material added to it that it becomes a new work.

Making a derivative work is one of the exclusive rights of a copyright holder. The other exclusive rights include the right to reproduce or copy the work, the right to display or perform the work, and the right to distribute the work.

Because derivatives are based on an earlier copyrighted work and creating them is an exclusive right of the copyright holder, to make a derivative requires permission from the original copyright holder.

That said, someone can be inspired by an existing work and create their own original work based on the IDEA of the original. If there is a study guide on the market, someone else can still create their own study guide without infringing on the original work, as long as the new study guide does not take creative material from the original and recast it, adapt it, or modify it - which would make it a derivative rather than a "transformative" work.

A transformative work is one that uses an existing copyrighted work and adds to the existing work new expression or meaning. It adds new information, new insights, new understanding to the original work. It becomes a work of its own. It could be determined by a court to be a "fair use" of the original creative work.

There is a fine line between transformative works and derivative works, and a fine line between fair use and infringement. The specifics really matter. Because specifics matter, a personal review and assessment by an IP or publishing law professional is almost always wise and advised.

As to the use of trademarks, a trademark should only be used in a descriptive manner. One must avoid using a trademark in a way that implies a connection to the trademark holder (an endorsement, a sponsorship, an ownership by the trademark holder). One must avoid using someone else's trademark to promote one's own work, trading off the reputation of the trademark holder to draw consumers to one's own work. It is generally advised not to use another's trademark (name, logo, slogan, whatever) on the cover of a book (although this can, at times, be done with enough disclaimers and with awfully good liability insurance).

Although what you want to do is doable, and has been done in the past without an issue, there are no easy answers for you to your questions on a forum. I again recommend you sit down with your manuscript for a personal review in your area. Good luck.

I want to thank you very much for the comprehensive answer.

However, I have some follow up questions right now.

1. Lets assume that the IP attorney determines with confidence that this is a transformative work. Would it be still possible for the lawyers of that certifying agency to deduce that this is a derivative work?
2. If they do come to that conclusion what could they do besides asking the websites to take the book down?
3. Is there a limit to what can be considered copyright infringement? Because I would like to consider myself quite knowledgeable in my field and I have been using terms similar to those included in the agency's material way before I got certified. At what point does my knowledge(based on facts and science-based research) and my writing as a consequence start to infringe upon their copyright?

 

[quincy]

I want to thank you very much for the comprehensive answer.

However, I have some follow up questions right now.

1. Lets assume that the IP attorney determines with confidence that this is a transformative work. Would it be still possible for the lawyers of that certifying agency to deduce that this is a derivative work?
2. If they do come to that conclusion what could they do besides asking the websites to take the book down?
3. Is there a limit to what can be considered copyright infringement? Because I would like to consider myself quite knowledgeable in my field and I have been using terms similar to those included in the agency's material way before I got certified. At what point does my knowledge(based on facts and science-based research) and my writing as a consequence start to infringe upon their copyright?

You can be sued. That is the bottom line. There is nothing that can prevent someone from claiming infringement and it will then be up to a court to decide the matter.

That is why it can be important to seek out permission from any rights-holder prior to using their works, this whether you believe your use is a fair use or not. That is the best way to avoid a lawsuit. The second best is to have your work personally reviewed prior to publication by an IP professional/publishing law professional and then only publishing after obtaining sufficient insurance to cover the costs of any lawsuit that might arise from the publication.

If a copyright or trademark holder decides to file suit against you, they can seek from a court an injunction to prevent you from creating additional copies of your book and to prevent further distribution of your work. If found infringing in court, existing books can be seized and destroyed. This would be in addition to any monetary damages that might be awarded.

There are different types of injunctions. A temporary injunction can be issued by a court to restrict distribution until the court can review the facts of the suit. A preliminary injunction can be issued if the rights-holder demonstrates to the court that they have good support for their legal action and are likely to prevail in a trial. A permanent injunction will be issued if a trial is decided in favor of the rights-holder and will prohibit the infringer from using the rights-protected material.

Again, as said previously, there is often a very fine line between a legal, non-infringing use of rights-protected material and infringement. This is a line that can be easy to cross which is why it is recommended all precautions (personal review by a professional, insurance, consent to use the material ...) are taken prior to creating and publishing a work that borrows in any way from rights-protected material.

Good luck.

 

[ace.law]

You can be sued. That is the bottom line. There is nothing that can prevent someone from claiming infringement and it will then be up to a court to decide the matter.

That is why it can be important to seek out permission from any rights-holder prior to using their works, this whether you believe your use is a fair use or not. That is the best way to avoid a lawsuit. The second best is to have your work personally reviewed prior to publication by an IP professional/publishing law professional and then only publishing after obtaining sufficient insurance to cover the costs of any lawsuit that might arise from the publication.

If a copyright or trademark holder decides to file suit against you, they can seek from a court an injunction to prevent you from creating additional copies of your book and to prevent further distribution of your work. If found infringing in court, existing books can be seized and destroyed. This would be in addition to any monetary damages that might be awarded.

There are different types of injunctions. A temporary injunction can be issued by a court to restrict distribution until the court can review the facts of the suit. A preliminary injunction can be issued if the rights-holder demonstrates to the court that they have good support for their legal action and are likely to prevail in a trial. A permanent injunction will be issued if a trial is decided in favor of the rights-holder and will prohibit the infringer from using the rights-protected material.

Again, as said previously, there is often a very fine line between a legal, non-infringing use of rights-protected material and infringement. This is a line that can be easy to cross which is why it is recommended all precautions (personal review by a professional, insurance, consent to use the material ...) are taken prior to creating and publishing a work that borrows in any way from rights-protected material.

Good luck.

Ok then. Two final questions if you are willing to answer them.

Assuming that after a review by an IP professional the conclusion was that this was a transformative work, how would one go about asking the agency for consent? Would sending the finished manuscript and asking for permission be enough? What would prevent them from using my manuscript in their future work?

Also would it be legal for them to provide a negative answer even after a review by an IP professional without giving an explanation whatsoever or pointing to the location in my book that infringes upon their copyright and therefore needs to be changed?

Thanks again for all the great answers.

 

[quincy]

Ok then. Two final questions if you are willing to answer them.

Assuming that after a review by an IP professional the conclusion was that this was a transformative work, how would one go about asking the agency for consent? Would sending the finished manuscript and asking for permission be enough? What would prevent them from using my manuscript in their future work?

Also would it be legal for them to provide a negative answer even after a review by an IP professional without giving an explanation whatsoever or pointing to the location in my book that infringes upon their copyright and therefore needs to be changed?

Thanks again for all the great answers.

I think it can be a mistake to send a finished manuscript for personal review and assessment to anyone but an IP attorney or a publishing law professional/traditional publisher. A rights-holder might want to do unnecessary editing of your work or try to control what you do with your work and, if you deny them this, permission can then be difficult to obtain.

Instead you can inquire of the rights holder about permissions and/or licensing rights, providing an outline of your proposed use of their work and the professional assessment you have had done of your work. If permission is not granted to use a work, then you have a choice to make. A few, like Weird Al Yankovic, will avoid all lawsuits by never using material if a rights-holder refuses to grant permission, this whether or not there might be legitimate defenses to the use (e.g., fair use). Others will arm themselves with an IP professional's assessment (or two), obtain insurance, and plunge ahead with publication on a hope and a prayer.

As a rule, an IP professional is not likely to say definitively that your book is a transformative work. The professional will provide you with an educated opinion based on the facts, the law and case law. The professional can provide you with a good idea of the odds a lawsuit will arise from your use and the odds you would have in court should the use result in a lawsuit. But definitive answers are rarely provided by lawyers because there are too many unpredictable factors that go into a court decision (like judges and juries).

The best advice I have for you is to start by sitting down with a professional in your area for a personal review of the work you have created or hope to create. And go from there.

Good luck.