Re: obscure derivative works question

Dan Agin writes:
>
> 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. [snip]
>
> 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.
>

First, I don't think we are cutting off the rights of original creators in their works. They still have the right to prevent the use of the expressive elements of their work, just not in the limited circumstances in which that use is "fair."

Second, it seems to me unlikely in any given case that the copyright owner will independently try to produce the same arrangment of materials as had previously been done by the fair user. [In part, this is because one of the inquiries relevant to fair use according to Campbell is whether the use will infringe on the market for potential derivative works]. But if a use really is fair, and the owner of the underlying original work wants to mimic that use later on, I guess I am not so troubled by requiring her to pay the fair user. After all, that is what we do in the patent context with "improvement patents."

Finally, I differ with Dan on the analysis of parodies. We allow parodies because they are transformative original works which (1) *must* incorporate the original to work, and (2) are extremely unlikely ever to be licensed. I disagree that the law somehow "prefers" amusement value. For example, it seems to me that we give the same treatment to literary criticism that we do to parodies, and for the same reasons.  

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 11 1996 - 19:39:26 GMT