MYTH BUSTED! Am I liable for copyright infringement if I changed the original by at least 10%.

MYTH BUSTED! Am I liable for copyright infringement if I changed the original by at least 10%.

Today we are busting the myth that if you change something by 10%, then you’re not liable for copyright infringement. I’m talking about a copyright work or something that might be under patent or protected by a registered design. I’ve heard this repeated so many times, a client will say to me, “Well, I took that blog post and I changed it by more than 10%, so I’m not infringing copyright.” Or they look at a registered design, and they say, “Well, I changed it by 20%, so I’m not infringing design protection.” 

The 10% rule is an absolute total myth, with copyright there’s three things that you’re not allowed to do. If somebody owns copyright in a photograph, or in a blog post, or in training material, you are not allowed to use it without the owner’s consent. You are not allowed to modify it without their consent, and you’re not allowed to broadcast it without their consent. So copying is pretty straightforward, if you copy the whole thing without permission, obviously you’re in trouble. What about modifying? 

The law doesn’t say, you’re not allowed to modify it, unless you make it 10% different, the law just says you’re not allowed to modify it. So this idea that it has to be more than 10% different, it’s just simply wrong, the courts don’t actually look at it like that. Instead the courts say, “Did this thing, this new training material that you’ve created, originate from the old training material?” And if they can see you’ve taken the old one and either copied it directly or copied it and modified it, you are going to be in trouble. 

The courts are actually quite savvy, they can see if you’ve made changes and they can see if you’ve developed it yourself and they can see if you’ve come up with something on your own. There was a case in England, where somebody had created a telephone directory, back in the days when we had books for telephone directories and they were worried that somebody was gonna copy their stuff. So they put three false entries in the telephone directory, and when the new person created a telephone directory, they went to court.

The copier said, “We did our research and we created this ourselves.” But the new directory had the same three fake entries as the old directory. So that’s how the judge knew in that case that there had been copying. So don’t do it, don’t copy or modify somebody else’s things, whether it’s 10% or to any degree. If a judge is very savvy, they’ll be able to tell if you’ve taken something that doesn’t belong to you and just changed it. 

There is one slight exception: you can look at something and then be inspired by it and then go away and create something wholly your own. But even then that’s a little bit risky because what can happen is you can be so inspired by it, that you bring more of the original into your work than you anticipated. So the 10% rule does not exist, create your own things from scratch, this is Cathryn Warburton and I am The Legal Lioness.

Cathryn Warburton About the author

The Legal Lioness. Overcoming severe bullying as a child instilled in her a passion to protect others. As a skilled litigator, she indulges in her dream to push-back against business-bullies who target her clients. She is an international award-winning lawyer and patent attorney and 5-time published author. Cathryn bullet-proofs her client’s businesses and protects them like a mama lioness protecting her cubs. She makes sure that no business is left without access to affordable, easy-to-understand legal information. She does this through her books, proactive legal workshops and 1-2-1 legal services.