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[busstop]

I am thinking about making a derivative of someone else’s video product they put on a dvd, and sold as a tutorial product. Their product has not been on the market for about two years. The person that put the product on the market did not put a copyright on their product. And is not trying to sell the product anymore. Would I be liable for copyright infringement if I make a derivative of their product? Example, they made a template to navigate an interactive with their tutorial dvd. It has a certain color scheme and layout. I want to use the same template and layout to navigate my dvd tutorial product. But use a different color scheme. The content I will put in my product will mean the same. In meaning to the product I want to emulate. Example, the person use the word ‘lesson 1′ in their tutorial product. I was going to use the word ‘session 1′ in my tutorial product. The person use the work ‘review’. I was going to use the word ‘analysis’. The person use the words ‘ trend watch. I was going to use the word ‘trend observation’. The person use the words ‘ competitive Analysis’. I was going to use the words ‘ opposing analysis’. I think you get the ideal of what I am doing by replacing words. I am going to talk about the same subject. But put information into my own words. Would someone please tell me if this would be copyright infringement, or illegal?

[Zonath]

Okay, let's clear up one misapprehension right now, because pretty much everything else in this response is going to flow from this: The author of a work does not have to 'put a copyright' on his or her work.  Copyright is automatically granted to any work of creative expression which fits into the criteria of a copyrighted work. 

There is also no requirement anymore in the US copyright law that requires notice to be placed on any copyrighted work, and no requirement for a copyright to be registered (although notice and registration can be well-advised).  In addition, unlike trademark, which only protects a property while it is in use, a copyright's status does not depend on whether or not the author uses or markets his or her work. 

All this means that unless you can find an express release of the work into the public domain by the author, or else an express grant of an open license which would allow your proposed use of the work, you cannot use any part of the work without running the risk of committing copyright infringement.

Now, whether or not your video would constitute actual infringement under the circumstances you describe is somewhat debatable, since you don't really make it clear how derivative you plan to make your work.  Things like menu layouts, unless they're just inherently very distinctive and unique, don't generally come in for a whole lot of protection.  Obviously, you shouldn't copy anything directly, but if your menu layout happens to look somewhat similar to another author's layout, well then, that might just be because there are only so many ways you can really lay out a menu.  Likewise, the titles used may also not come in for a whole lot of copyright protection, and information isn't really copyrightable at all, although particular expressions of that information are.

At the same time, the more you make your work look like a derivative of another work, the more likely you are to attract the attention of the owner of that work's copyright, and the more likely they are to hit you with an expensive and damaging infringement lawsuit.  Whether or not that lawsuit ends up winning, your use of the work can be tied up for a long time with injunctions while the suit is pending, and any investors who you might have wanted to entice may end up being scared away (after all, who wants to invest in a company only to see their investment evaporate in a judgment?)

So, I don't think it could be said here whether or not your work would be infringement, but it certainly could be.  If you have your doubts, you should probably take your materials to a copyright lawyer in your area in order for a more educated opinion which can actually examine the facts of your proposed use.

[busstop]

Thank you for the information.  I will take your consultation and go find me a copyright lawyer.