Incorporation by Reference

What are the copyright implications of incorporating a copyrighted work "by reference," (applying the term "incorporation by reference" in the sense used by lawyers in document drafting). For example, assume that a lawyer prepares a will for a client consisting of a cover page stapled to a copyrighted form will purchased at a stationery store. The cover page (a) "incorporates the form by reference" and then (b) modifies or supplements one or two of its terms.

The lawyer has purchased one copy of each referenced form for each will he prepares.

In another sceanrio, the original copyrighted work might not be attached at all, but simply identified and "incorporated by reference." Perhaps it is recorded in a public records office somewhere, or is simply available for purchase.

Is the right of reproduction is implicated? Is a 'copy' made by such a virtual reference?

Has the lawyer created a derivative work? The commentary to Section 106 says that a derivative work "must incorporate a portion of the copyrighted work in some form ..." Galoob v. Nintendo emphasized the word "form" and said that no derivative work was created when the altered version of the Nintendo game was not in any concrete or permanent form. Is that requirement satisifed here?

If I buy a copy of a book, write another chapter, put a rubber band around the book and my chapter and sell it, my gut tells me that is a derivative work. I have incorporated the original work into a new work. But I don't feel as certain about a document "virtually" incorporated by a reference to it.

Is this analagous to an out-link on a web site? It seems more like framing, but in framing a copy of the original is produced in the combined site.

How does this differ from writing a computer program that can be used in conjunction with a third party's copyrighted program, e.g., an add-on module, plug-in, set of macros, etc.? Assuming that no copy of the 3P's program is made by the add-on product, I would not expect the add-on to be characterized as a derivative work.

Jordan J. Breslow                                          1111 Third Avenue
Co-Chair, Intellectual Property Group                      Seattle, WA 98101
Foster, Pepper & Shefelman PLLC                      Voice +1 (206) 447 8925
bresj[_at_]foster.com                                       Fax +1 (206) 749-1995