obscure derivative works question

asked by a student, to which I don't know the answer:

Under section 103(a), copyright in a derivative work does not extend to "any part of the work in which [copyrighted] material has been used unlawfully." So if I translate a copyrighted book without authorization, for example, I get no copyright in the original expressive elements of my translation.

My question is, at what point in time is "has been used unlawfully" judged? If I translate first and get authorization later, am I forever without copyright, on the theory that at the time I made it the use was unlawful? Or if I later get permission, does my unlawful use become lawful, entitling me to a [retroactive?] copyright?

Your thoughts would be appreciated. Your cases would be *greatly* appreciated.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Wed Oct 30 1996 - 22:44:27 GMT