Re: obscure derivative works question

Mark Lemley wrote:
>
> 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

All right, now I understand you. We have two categories: derivative fair-use and non-derivative fair-use. You're saying the first is protected and the second is not protected. But I think we are now in a worse situation than before, e.g., to use Sony, if a "fair-user" at home, who happens to have an editing machine, takes a tape, chops it up, and reorders some of the film sequences. His reordering, in your scheme, is protected, but not the elements. If the rights holder of the film later chops his tape and does the same reordering, our fair-user then steps forward and claims pre-emption of copyright in that ordering. Is that how it works? I don't think you want that. I don't think you want the original rights holder to forfeit rights in derivatives because some fair-user took his protected work and did it first. It might have worked (barely) in the past, when protection required publication. But now if anything is protected, it's protected immediately, without publication, etc., etc. As far as the parody case is concerned, no, they should not have protection. They can do the parody, that's fine, but they should not have protection because that damages the rights holder by forbidding him certain uses of his own work. No fair use should be protected. It is one thing to allow fair use, it is something else to award it copyright. I'm distinguishing here between "fair-use" and the use of non-protected elements of a created work. Every created work has certain non-protected elements and certain protected elements. The term "fair-use" should apply only to the copying of protected elements. Non-protected elements can be used by anyone, and such usage should not be called "fair use".

Parenthetically, I have never been comfortable with the parody rulings. The gist of it seems to be the courts say parody is fair use because it amuses people. So you're allowed to take someone else's work and make an amusement as a close derivative, but you are not allowed to take that work and provide the audience some other emotional experience as a close derivative. I don't understand the logic here. You can copy if you make people laugh, but you cannot copy if you make people cry. Shades of George Orwell.

Dan Agin
Spectrum Press
specpress[_at_]earthlink.net Received on Thu Nov 07 1996 - 14:07:06 GMT