Re: Collages

Eugene Volokh wrote:
>
>
> David Dailey writes:
> >
> > 1. [If the collage is] a cutting and pasting of physical and
> > legally obtained magazine parts and magazine molecules[, ] it seems
> > like this would be covered under the doctrine of "first sale"
> > (section 109 of the Act, I think). You own the molecules; you can
> > do with them as you wish, so long as you don't copy the original
> > expressions scribbled thereupon.
>
> I think that under National Geographic and Mirage, even a collage
> without copies would be a presumptively infringing derivative work
> (though of course there'd still be a fair use defense).

If this is the case, then why do we have section 106A of the Copyright Act? Wouldn't any mutilation or alteration of a work of art be a derivative work, rendering section 106A superfluous? Or, if one assumes that section 106A applies only to mutilations that do not give rise to original works, or are not deemed works of authorship, we're in the anomalous position of branding the creative collage maker an infringer more readily than the mutilator of art (the collage maker is an infringer even without section 106A).

To me, the above demonstrates the problem with making categorical statements about what a work "is." I would argue that, whether a collage is a derivative work also depends on how it is treated (marketed, published, identified), since the copyrighted work will invariably have a communicative aspect that makes it difficult to define.

Bob Rotstein.
<rots[_at_]primenet.com> Received on Wed Mar 06 1996 - 18:08:39 GMT