[This article was originally published by Dr. Giles in 2003 in The Journal of Hypnotism]
You’ve just purchased a wonderful new book of hypnotic scripts. It cost a lot. It’s bound with a spiral and was printed on a photocopier, yet you paid $80 for it. Or it cost more than that, and came in a three-ring binder of the sort that cost only a few dollars at the local office supply store.
But the scripts are good. They deal with the topics your clients want to cover. You look forward to using them, especially as one or two of the scripts use techniques you had not thought of.
But then you open the book up and on the copyright page you find something like this: “All rights reserved, including the right of reproduction in whole or in part in any form.”
Say what? You mean I paid almost a hundred bucks for a book of scripts that cost the author about a $2 to print and now the author is telling me that I can’t make any use of the scripts in my practice? I can’t “reproduce” the script using my voice with my clients, and my clients can’t make a recording of my use of the script without violating the author’s copyright? What gives?
Perhaps you call a friend with some legal knowledge who, thinking about the legal rights laws surrounding plays or music may tell you that, in fact, you can’t use the scripts professionally. After all, buying a copy of a script for a play doesn’t mean that you can stage the play for a profit without paying royalties to the playwright. Purchasing a piece of sheet music does not mean that you can perform the piece in concert without a royalty payment to the composer.
Do not fear. While, to the best of my knowledge and research, this issue has never been addressed in any court, complaints about copyright abuse are one of the most frequent complaints that the Ethics Committee of the National Guild of Hypnotists has to deal with. Therefore, I want to share with you what our thinking is on this subject. True, a court could rule on this and take a position that is different than the one articulated here, however such a ruling is unlikely, in part, because any court that did rule on this matter would have to take into consideration the findings and policies of the largest and most influential hypnosis organization in the world, the National Guild of Hypnotists.
The issue at hand is a common-law doctrine called the “warranty of merchantability.” This is a legal philosophy that says that if someone sells something, the thing sold must be fit for the purpose it is sold for. You cannot sell spoiled food because spoiled food is not edible. You cannot sell a waterproof case that does not keep out water. If you do these things you have made an error, and quite likely committed fraud.
So for what purpose is a hypnotic script sold for? It is not at all clear to us that a hypnotic script is sold for the same purposes that a play or musical composition might be sold. A person may buy a copy of a play simply for the pleasure of reading it. People frequently purchase sheet music for the pleasure of playing it in the privacy of their own homes for personal amusement.
To the very best of my knowledge no one purchases books of hypnotic scripts in the belief that they are buying fine literature. No one reads hypnotic scripts about “Shrinking Your Prostate” or “Stopping Nail Biting” for personal amusement and enjoyment. Hypnotic scripts are not “fit” for the same purpose as the script of a play or a musical score. Any claim otherwise would almost certainly be held as unreasonable.
The purpose hypnotic scripts are created to serve is the purpose of allowing hypnotists to help clients. That is the purpose they are “fit” for. Therefore, if you purchase a book of scripts you may use them for that purpose. The author has received compensation in the form of the payment you made for the book; you have every right to expect to receive something of value in return. The author cannot escape the implied warranty of merchantability on the book of scripts by adding objections in the copyright notice.
But there are things you may not do with a book of purchased scripts. Most importantly, you may never claim or imply that the script is your own work. Unless the author sells you a special license that allows you to do so, you may not record the script and sell the recording. Nor may you relabel, rebrand or republish the script in any way, except to quote brief sections in an academic or scientific article with the quotations properly attributed.
If you use a purchased script with a client and make a recording of the hypnotic experience for the client’s home use, it is important that the recording be somehow identified as for the unique use of that client and not any sort of commercial product. It should not be something that the client could easily copy and distribute. Nor should you charge the client an extra fee for the recording, which would amount to republishing the copyrighted script.
The usual way to achieve this is to give the client the recording as a gift, and to be sure that the recording contains the client’s name along with some sort of disclaimer that the recording is for the exclusive use of the client only. While you cannot control what other people do, you can protect yourself by insuring that you do all possible to protect the rights of the holder of the copyrighted script. Doing so will provide you with an affirmative defense against any charge of copyright violation.
By taking these few reasonable precautions, you are able to make use of the contents of a book of hypnotic scripts you have purchased.