Re: A Little Linguistic Playground

On Thu, 25 Mar 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu>
>
> On Wed, 24 Mar 1999, Rod Dixon <rod[_at_]cyberspaces.org> wrote:
> >
> > On Tue, 23 Mar 1999, Jessica Litman <litman[_at_]mindspring.com> wrote:
> > >
> > > Actually, in one signficant respect, it is. Section 103(a) withholds
> > > copyright protection from any portion of a derivative work or
> > > compilation that uses copyright-protected material unlawfully.
> >
> > If your point is that section 103(a) is self-executing, then I am
> > unclear how so. Secton 103(a) qualifies the subject matter of
> > copyright in a compilation, but if the copyright owner of the
> > preexisting, subsisting material does nothing, that would seem to
> > end the matter for practical purposes.
>
> I think Jessica's point (correct, as always) is that if you infringe
> someone else's material in preparing your derivative work, you *do
> not own copyright* in your own original work intermingled with the
> infringing stuff. They don't need to sue you and win to cause this
> to happen; the infringement has prevented you from owning copyright
> in your own creations.

This is different from my understanding of s103(a). If I wrote a sequel to Star Wars, for example, I obviously would not get copyright in any aspect of my story that was taken from George Lucas's preexisting material. But, this doesn't mean that the original aspects of my work are unprotected. In other words, in my understanding, George Lucas wouldn't be entitled to use the sequel without my permission any more than I would without his. If this is not so, it would be very bad news for sequel writers, creators of collective works, rap music producers, and others who create unauthorized derivative works hoping afterward to license the right to do so.

Jason Vogel
<jasonvogel[_at_]ibm.net> Received on Fri Mar 26 1999 - 14:51:12 GMT