Re: obscure derivative works question

On 11/5/96, Dan Agin wrote:
>
> Mark Lemley writes:
>>
>> 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."
>
> I understand your point, but if one says "any taking which was
> neither authorized nor fair use prevents the taker from copyrighting
> the derivative," then one is saying that if there is fair use then
> the fair user may have copyright. Which, of course, is not what you
> mean, so there needs to be a syntax revision.
>

Actually, that *is* what I mean (at least I think it is). Consider Campbell v. Acuff-Rose, the 2 Live Crew parody case. Assuming 2 Live Crew's parody of Orbison's song is a fair use, they should be entitled to copyright their derivative of the original song, preventing anyone else from copying their original expression.

I agree that talking of a derivative works copyright based on a fair use becomes nonsensical if one moves from transformative works to fair uses like that at issue in Sony. But there, I think we can safely say the home taper doesn't get a copyright in her contribution because she hasn't added any original expression -- she has merely copied the original.

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 Nov 06 1996 - 21:50:36 GMT