Re: Collages

On Wed, 6 Mar 1996, Robert H. Rotstein wrote:

> > David Dailey writes:
> >
> > 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?

Sections 106(2) (derivative works) and 106A (author's rights) protect two fundamentally different interests.

106(2) protects a right of the copyright owner. 106A protects a right of the author, who may or may not be the copyright owner. If the law did not provide for the capability of an author to assign a copyright, you would be correct that 106A would be superfluous, at least under Mirage. However, the copyright, including the 106(2) right, can be transferred. The 106A "moral right," however, cannot be transferred, and remains a right of the author and not of the copyright holder.

I don't approve of the Mirage holding that preparation of a derivative work that involves no reproduction of any part of the copyrighted work is not sheltered by the section 109 first sale doctrine. I think it's bad law. It is, however, law (at least in the Ninth Circuit); and under it, the collage described could be infringing, absent a fair use or other exemption. Differentiation between 106A and 106(2) doesn't suggest otherwise.

--
Terry Carroll 
Attorney at Law                                      ph: 415/843-5090
Cooley Godward Castro Huddleson & Tatum             fax: 415/843-0663
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