How different is different enough?

[anabanana]

What is the name of your state? FL

I have a client who is a doctor. A newspaper wants to run a health column by her, but they want to own the copyright to any version they run, so that if she publishes a piece about the same topic elsewhere it has to be different. Okay, but HOW different? How much has to be changed? Her advice is what it is, no matter what the medium, and how many different ways can you say "use sunscreen, wear a hat?" or whatever the health issue is... We already have a lot of this material written already and use it on her website. How different is different enough? How could there possible be a standard?

thanks.

 

[divgradcurl]

"How could there possible be a standard?"

You're right -- there isn't any way for a simple standard of "different enough" to exist. Whether something is "different enough" is a matter for the courts to determine on a case-by-case basis. However, one thing to keep in mind is that if an author is exposed to the other work in some way, then they new work will have to be "more different" than if there had been no exposure. I guess a simple way to put it is this: since she wrote the other article, her new article will have to be "more different" than if she had never written or seen the other work prior to her writing her piece.

If you really want to avoid a possible issue, there are a couple things you could do. First, you could work something out with newspaper to agree upon in advance if a column is "different enough" to avoid any litigation. You could also give the newspaper the copyright, but ask to retain a license to republish the work elsewhere. Finally, you could enlist the services of an attorney to help determine if your new work is "different enough."

 

[anabanana]

which "other work"

I'm confused as to what "other work" refers to. The other work would be her own work, copy she had generated, so of course she would have been exposed to it.

She's a doctor writing about various health conditions and dispensing general advice. Her advice is going to be essentially the same any time she writes about a given topic, but surely giving the newspaper copyright over this piece can't prevent her from disseminating those medical opinions in future, right? This isn't like a fiction piece where someone's made up a story. If the facts don't change, how much does the piece have to change to not be in violation of the copyright? This is pretty bizarre.

Thanks for any insight.

ab

 

[divgradcurl]

"Facts" are not copyrightable, period, so the newspaper could not keep her from reusing the facts. The presentation of the facts, however, is "creative" and that IS copyrightable.

So, the question remains, how "different" is "different enough." Again, their is no definite rule; its a matter for the courts to decide on a case-by-case basis.

Has she asked the newspaper what they would consider "different enough?" Since the newspaper is the one that would be seeking to enforce a copyright, if they are okay with it, it doesn't really matter if the court thinks its "different enough" since it will never see the inside of a courtroom.

Bottom line: there is no "rule" that will tell you what is different enough.