Re: Was Judge Hand good for (c)-law?

I continue to hold that it is the attempt to maintain a phoney distinction of kind between novelty and originality that has led to miscarriages of justice such as Fisher v. Dillingham. We would be more honest if we simply admitted that 'originality' is not easily distinguishable from 'novelty,' and that, though the standard of newness is much higher in patent law, this doesn't excuse the seeker of copyright monopoly from originating something 'new' in the sense of 'never before expressed in EXACTLY the same way.'

This is from Judge Owen's opinion in Woods v. Bourne (emphasis in all caps added):

      ...In order therefore to qualify as a
      musically "derivative work", there must
      be present more than mere cocktail pianist
      variations of the piece that are standard
      fare in the music trade by any competent
      musician.  There must be such things as
      unusual vocal treatment, additional lyrics
      of consequence, unusual altered harmonies,
      NOVEL sequential uses of themes--something
      of substance added making the piece to some
      extent a NEW work with the old song embedded
      in it but from which the NEW has developed.
      It is not merely a stylized version of the
      original song where a major artist may take
      liberties with the lyrics or the tempo,
      the listener hearing basically the original
      tune.  It is, in short, the addition of 
      such NEW material as would entitle the 
      creator to a copyright on the NEW material.

Notice how the words 'novel' and 'new' find their way smoothly into the dictum? The first half of the second sentence (up to the dash) was held by the Court of Appeals to overstate the standard of originality, but the rest of the dictum (with all the occurences of 'new') was cited favorably. I note that even the first half of the second sentence was said by the Court of Appeals to OVERstate the standard of originality, not MISstate it--the distinction is one of degree, not of kind.

Tim Phillips
<phillips[_at_]mail.nhn.ou.edu> Received on Tue Mar 31 1998 - 22:27:18 GMT