Re: obscure derivative works question

On 10/30/96, 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.

Sorry, no cases, but intuitively I would think it commonplace that an author would authorize a derivative work, such as your translation, subject to his approval of the translation. And by implication could approve after the fact a translation prepared on speculation and submitted for his approval. Thus, the translator could claim copyright, retroactive to the date of fixation, upon receiving authorization.

But (just to complicate the hypothetical with facts that actually present
themselves in a matter I'm handling) what if you translated my work without authorization. May I, without your authorization (since you don't have a copyright) "appropriate" your translation and distribute it commercially. May I also prevent third parties from copying your translation and distributing it on the theory that they also are infringing on my original work? Does it matter whether the translation was prepared for the translator's personal edification and enjoyment (hint:fair use) as opposed to his commercial enrichment.

John Noble
<jnoble[_at_]dgs.dgsys.com> Received on Thu Oct 31 1996 - 17:55:41 GMT