Re: obscure derivative works question

From: Spectrum Press <specpress[_at_]earthlink.net>
Date: Thu, 31 Oct 1996 10:05:48 -0600

The use of the term "unlawful" in section 103(a) is stupid. It is one thing to deny protection to a derivative work created without authorization from the rights holder. To call the creation 'unlawful" is something else. Every artist creating a close derivative of a protected advertisement illustration or other protected art for the purposes of study is thereby a criminal. Every writer doing the same with protected text is also a criminal. As the statute stands, it is certainly "unlawful" to create a translation first and try to interest the rights holder afterward. It would also be "unlawful" for a freelance television script writer to write an episode on speculation based on a protected TV series and try to sell it to the producers -- something which goes on all the time and without which many TV series would probably collapse. Similarly, in the case of certain paperback series, freelance book writers routinely create new books in a series and submit them on speculation to the publisher. Most of the Nick Carter pulp fiction series was published that way. So here again we have the failure of the extant U. S. Copyright Act to distinguish the actualities of distribution and commerce, either of which should be made necessary to an accusation of unlawful infringement, and the absence of which precludes any real damages to the rights holder.

Dan Agin

---

Spectrum Press Inc.
http://users.aol.com/specpress
specpress[_at_]earthlink.net

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 - 16:13:36 GMT