I would argue that if a work fails the Feist test of having at least a modicum of creativity to receive PROTECTION as a derivative work, than one can't be penalized for the CREATION of one. The analysis of the effect on the market is part of a 5-factor 17USC107 analysis of whether an otherwise infringing use is protected as a "fair use." Because the preschools use is DIRECTLY competitive with the original, intended market I suspect that they would fail if this analysis would be done. I don't think that the in-class non-profit educational nature of the use would carry as much weight because that IS the intended market. It is NOT like students performing "Our Town" in class as an exercise which probably doesn't affect the intended market of licensing the play for public performance.
The question in this case is has the pre-school violated any of the exclusive rights granted under 17USC106 AT ALL. Since this use involves neither copying, the creation of a derivative work (since like the Feist or West cases there is little or no creativity involved), or PUBLIC display, performance or distribution. The "what if" uses that you contemplate below ALL involve the licensing of rights granted to the author under 106.
Of course now it occurs to me that the argument COULD be made that the students themselves are creating derivative works when they fill out the workbooks (assuming that a modicum of creativity was involved, not just correct or incorrect answers) and that permission for the STUDENTS to create said derivative works would be granted subject to certain conditions. To what extant would the parents have to agree on behalf of the students (as minors) for said licensing? ...It's not a case that I would try to argue.
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of J. Noble
Sent: Thursday, August 31, 2006 2:55 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: [CNI-(C)] Re: Derivative Inquiry
At 3:25 PM -0400 8/29/06, Steven Jamar wrote:
>How about the author of the poem? The author got paid and negotiated
>the price, taking into account the first sale doctrine. Again,
>nothing to complain about.
At 3:25 PM -0400 8/29/06, John T. Mitchell wrote:
>While I believe the first sale doctrine would apply to both examples....
At 3:25 PM -0400 8/29/06, Jan Carmikle Dwyer wrote:
>Let's set the actual law aside for a moment and look at this from a
>spirit-of-the-copyright-law perspective.
At 4:35 PM -0400 8/29/06, Steven Jamar wrote:
>I have a serious legal problem with trying to do by contract what the
>statute does not allow. The statute has the first sale doctrine in
>it. The copyright holder has few rights in how that single physical
>copy gets used. The copyright owner just has rights regarding
>reproduction, derivative works, performance, display, etc. And even
>then the right to display one's own copy goes with the copy, not the
>copyright in the intellectual work.
At 2:55 PM -0400 8/30/06, David Dailey wrote:
>If too many people start applying the first sale
>doctrine, then publishers will just start
>shrinkwrapping their products. Copyright law is
>so passé.
Okay, this is interesting.
Let's assume the poet granted Norton a
non-exclusive license to reproduce and distribute
the protected work "only" in The Norton Anthology
of Modern and Contemporary Poetry, reserving the
right to authorize reproduction and distribution
of the work in Valentine's Day cards. Does the
first sale doctrine authorize distribution of the
work in violation of the explicit terms of the
license agreement? Or does it only allow
"redistribution" in accordance with the terms of
the license, i.e. in The Norton Anthology of
Modern and Contemporary Poetry?
Let's assume Maxfield Parrish (or his estate -- is he dead?) granted a very prestigious publisher a very expensive exclusive license to reproduce 145 works "only" under excruciatingly detailed terms and conditions, including the weight and gloss of the paper stock, his prior approval of the order in which the works are presented to show the development of his artistry, and "only" in a work of joint authorship with commentary by a designated art critic/historian. Same question -- does the first sale doctrine gut the terms and conditions of the author's license?
My own inclination is that the "spirit of the copyright law" should protect the poet's right to distribute his work in a respected anthology of poetry, rather than as a greeting card; and should protect the painter's right to distribute his work in a comprehensive exploration of his ouvre, rather than as a place-mat.
Although I disagree with Steven on the preemption issue -- I would characterize it as "trying to do by contract what the statute does not /forbid/" -- I think you can make a respectable argument that what the first sale doctrine allows is the sale or disposal of a "particular copy lawfully made" -- as that particular copy was lawfully made: in a book.
Going back to the day-care center's
cannibalization of workbooks. Mr. Dailey makes a
point (he claims he "just kidding" so I'll take
the heat). Educational materials are developed at
X cost and distributed at Y price, based on
projected sales to cover the cost and make buck
or two. If everybody cuts up the workbooks and
laminates the pages so they can be used with
grease-pencils over and over again, the workbook
is going to be distributed in the form of
laminated pages, bundled with grease-pencils, and
priced accordingly, to recover the same cost and
make a buck or two, and a little more on the
pencils, which need to be replaced constantly
because they run out of ink so fast.
John Noble
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