Re: obscure derivative works question

John Noble writes, with respect to my suggestion that a new story using protected characters could be a "part" of the derivative work that did not make use of protected materials (and therefore to that extent itself be copyright protected):
>
> 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.

    I don't understand the "search-and-replace" aspect of this question. In my hypo, the DW author has herself constructed a brand new story. She is not simply searching and replacing in Stallone's protected story. So, given that she's written a new story, after excision of the protected elements that belong to someone else (by using "search and replace" if you will, provided it grabs all the protected elements), I don't see why Stallone or anyone else should be able to make free use of the creative expression in the story elements that remain. John is usually highly solicitous of the authors of creative expression. Why not here?

> 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.

     I never said that everything new in a DW was a separable "part" that might be protected. I personally see no way to separate the "expression" in an English-language literary work out of a translation of that work into another language and still leave anything to protect. But what does this hypo have to do with mine?

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu Received on Mon Nov 11 1996 - 19:23:22 GMT