Re: obscure derivative works question

On 11/5/96, Dennis Karjala wrote:
>
> Another variation of this problem is one I always discuss with my
> copyright class and arises out of the situation in Anderson v. Stallone,
> 11 USPQ2d 1161 (C.D. Cal. 1989), edited version in Gorman & Ginsburg,
> p.224.
>
> There Anderson wrote an original script using a copyright-protected
> character ("Rocky") belonging to Stallone. That is, Anderson's story
> (sequence of events) was original to him but the characters had appeared
> in earlier works in which Stallone held the copyright. Because Anderson
> wrote his script without Stallone's permission, the court invalidated
> Anderson's derivative work copyright completely.
>
> Section 103(a), however, says that "protection for a work employing
> preexisting material in which copyright subsists does not extend to any
> part of the work in which such material has been used unlawfully." The
> question is, what is a "part of the work" for the purpose of determining
> whether protected material has been used therein unlawfully? The Anderson
> court obviously concluded that, because the characters appeared throughout
> the work, there was no "part" of it in which they were not unlawfully used.
> This is sort of a "physical separability" test not entirely dissimilar to
> some analyses for PGS works. I don't say that this approach is obviously
> wrong, but it doesn't seem to be the only one possible. Because copyright
> covers "nonliteral elements" of literary works (and not just computer
> programs), it seems to me that we could conceptualize the detailed plot
> and sequence of events (protected elements under Sheldon) independent of
> the actual personalities of the characters that push the events along.
> Under this approach the basic plot, stripped of all references to
> protected elements of the characters, would be a "part of the work in
> which [protected] material has [not] been used unlawfully," because, by
> hypothesis, all such references have been stripped out. This would still
> prevent Anderson from exploiting the protected characters without permission
> but would also prohibit Stallone from getting a windfall at the expense of
> Anderson's (assumed) creativity in expressing the plot by using Anderson's
> plot in a new movie. To me, that result is not obviously wrong, either.
>
> Any thoughts?

It seems in your example that the author of the derivative could basically do a search-and-replace substituting "Herschel" for "Rocky" and he'd have a fixed, original and copyrightable work. I'm simplifying-- maybe you also need to change his working class Italian background, but this is basically Computer Associates, isn't it? Just identify and yank the infringing elements.

How would your construct apply to these facts? Producer makes industrial/educational videos. Company purchases a copy of one of Producer's programs, and has it translated into Spanish and dubs a sound track so that the program can be shown to employees in Company's Mexican plants. Set aside the fair use question, and assume that Producer can prevent Company from using the unauthorized derivative. Under your analysis is there a way to "separate" the copyright protection denied under 103(a) from the "part" of the derivative work which is original, i.e. the specific Spanish language translation. Note that if the translation is more or less "literal", when you "strip out" the nonliteral elements, you are basically left with just the "idea" of a Spanish language translation, which is obviously not protectable. In short, can Company prevent Producer from copying and distributing the Spanish language version of the program.

John Noble
<jnoble[_at_]dgs.dgsys.com> Received on Thu Nov 07 1996 - 14:15:38 GMT