Re: obscure derivative works question

From: Laura N. Gasaway <unclng[_at_]email.unc.edu>
Date: Thu, 31 Oct 1996 10:10:37 -0800 (PST)

     I know of no cases on this issue about when "has been used unlawfully" is judged/ My guess on this issue is that copyright could be granted retroactively.

     In fact, since copyright and publication are now differentiated acts, it can be published without losing later protection.

     Reality dictates, however, that the translation probably would be published with a copyright notice, and the translator might even register the work. Does the Copyright Office require proof that the translator has permission from the author? If not, then the only time the issue about the noncopyrightability of the translation is likely to be raised is in an infringement action.

Lolly
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Laura N. Gasaway			phone:  919-962-1049
Director of the Law Library &		fax:    919-962-1193
   Professor of Law			email:	laura_gasaway[_at_]unc.edu

Law Library, CB # 3385
University of North Carolina
Chapel Hill, NC 27599

On Wed, 30 Oct 1996, Mark Lemley wrote:
>
> 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 Thu Oct 31 1996 - 15:15:57 GMT