Re: Re: Re: Unreferenced Notes from an Instructor

Vance's points are very well taken.

Nonetheless, if the notes are chapter by chapter and follow the original in structure, sequence, and organization, then one gets ever closer to a derivative work. A mere synopsis of a book or summary would not be. A review or critique of a story or nonfiction work in some sense "derives" from the original, but are not typically derivative works.

It depends in no small part on the amount of protectable expression used. Protectible expresssion extends, of course, beyond quotes and the literal into the various levels of abstraction involved -- as sagely explained in a wonderfully crafted work itself, Judge Hand in the Nichols case.

The line between idea and expression can never be described or drawn in a fashion that any simplistic syllogistic application can distinguish between the two.

An outline of a book would tend more toward being a derivative work than a wholistic critique. A work of fiction will have somewhat broader protection than a work of non-fiction since the latter involves a lot of facts or fact-like things that are not protected.

Obviously one cannot judge the issue from a single descriptive paragraph of what is going on. My main point was and is that in this area a lay person ought to tread somewhat carefully. If lawyers, law professors, and law students and, I dare say, judges would be reluctant to render a firm opinion, then one ought to be a bit careful about doing so as a lay person.

To conclude as I did in my first post on this -- I take a rather vigorous view in favor of use by the second comer of what the boundary should be in this sort of case -- whether one considers it a derivative work or whether one would rely on fair use and so would typically support finding this sort of thing as not infringing. But I must be clear that the law is murky and unavoidably so and the risk one is willing to take and the reasons for taking it factor into the practical decision.

Steve

On May 11, 2005, at 5:05 PM, Vance R. Koven wrote:

> John's and Steve's responses well illustrate the vexatious concept of
> derivatives. The classic examples of derivatives are translations and
> treatments in other media, e.g. movies from novels. Against this
> exclusive right you have to weigh the lip-service paid to the notion
> that the ideas inherent in something are not protected, only the
> expression.
>
> Where does the idea-expression dichotomy end and the derivative work
> begin? An abstract or summary of a work really shouldn't be considered
> a derivative, if it doesn't quote excessively, since it only seeks to
> extract the underlying ideas from a work without making use of any of
> its expressive devices. Words, of course, come in only limited
> quantities, so paraphrasing should be given a degree of latitude.
>
> At the risk of being sued, here is a short quote, for purposes of
> comment and analysis, from Nimmer (footnotes omitted):
>
> <quote> It should be noted...that the term derivative work in a
> technical sense does not refer to all works that borrow in any degree
> from pre-existing works. A work is not derivative unless it has
> substantially copied from a prior work. If that which is borrowed
> consists merely of ideas and not of the expression of ideas, then,
> although the work may have in part been derived from prior works, it
> is not a derivative work. Put another way, a work will be considered a
> derivative work only if it would be considered an infringing work if
> the material that it has derived from a pre-existing work had been
> taken without the consent of a copyright proprietor of such
> pre-existing work.<unquote>
>
> Lest anyone think that the last sentence quoted is circular, you have
> to exclude from consideration the exclusive right to make derivatives
> from the determination of whether something infringes. That said, I
> think--if Nimmer is correct, which for practical purposes means if
> it's supported by case law--that an abstract, precis, synopsis, or
> reactive notes on another work that did not quote from the original is
> NOT a derivative of the original.
>
> One reason why it's important to determine that the summaries are not
> derivatives is that many textbook publishers make additional money
> publishing just such sorts of summaries as part of their teacher
> supplementary materials. If all you had to go on was fair use
> analysis, the fact that a market exists for such materials could
> easily defeat a fair use claim. If, however, the summaries are outside
> the scope of the exclusive rights, by not being a copy, performance,
> display, *or derivative* of the original, then fair use analysis
> becomes unnecessary.
>
> Vance
>

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

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