Re: obscure derivative works question

Dan Agin writes:
>
> 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.
>

Actually, I had always read the language to benefit the user. Rather than saying "any taking not authorized by the copyright owner prevents the taker from copyrighting the derivative," I read it to mean "any taking which was neither authorized nor fair use prevents the taker from copyrighting the derivative."

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 Mon Nov 04 1996 - 16:13:33 GMT