Re: Re: Amicus Brief in Satava v. Lowry

On Wed, 2003-10-01 at 21:41, Ralph D. Clifford wrote:
> On Wed, 01 Oct 2003 14:35:25 -0400, Robert F. Bodi wrote:
> >Further, it is clear that the Ninth circuit did NOT find that the jellyfish
> >sculpture was not copyrightable, but instead merely found that the
> >protection was pretty much limited to exact copying.
> >
> As the brief says, independent creation -- Lowry looking at a jellyfish
> and making his own statue -- is not copyright infringement. If he took
> Satava's statue and used it as source material, this was either copying under
> section 106(1) or preparing a derivative under 106(2). Satava's statue was
> not a work of non-fiction. It was not a directory of facts. It was an
> artistic rendering.
>

I may be wrong (I often am) but I think that to focus on the creativity involved in the original, although the subject of Prof Clifford's brief, may be to miss the more important distinction at issue in this case, which is the line between inspiration and copying. Lowry must not be prevented by copyright law from drawing inspiration from Satava's creative works. Here I have to disagree with Prof. Clifford's statements above: merely using Satava's statue as source material, if the only use of that source material was as inspiration for Lowry's own original work, does not amount to copying. It would be a sorry state of affairs indeed if the defensive practice of clean-room development were to spread from the software industry into artists' studios, but that might be the implication of the arguments being propounded.

-- 
Edward Barrow
Copyright Consultant
http://www.copyweb.co.uk/
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