Re: A Little Linguistic Playground

On Thu, 25 Mar 1999, Jessica Litman <litman[_at_]mindspring.com> wrote:
>
> On Wed, 24 Mar 1999, Rod Dixon <rod[_at_]cyberspaces.org> wrote:
> >
> > 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.
>
> Let's imagine that B creates an unauthorized derivative work
> unlawfully incorporating A's copyrighted expression, but A does not
> care, or in any event, does not sue. Now let's imagine that C steals
> portions B's work, and B sues C for infringement. C can argue,
> sucessfully in my view, that under section 103, B lacks a valid
> copyright in any portions of her derivative work that incorporate A's
> work unlawfully. That means that B doesn't own a copyright in that
> portion of her work, and cannot recover for its unauthorized use by
> another. It also means that anyone with a license from A can bodily
> appropriate the authorship of B.

I thought you were raising a type of affirmative defense argument for a subsequent infringer. I think the argument is interesting. You must admit, I believe, that it's a quite unusual remedy for copyright infringement -- and in my opinion, not an entirely appealing one. In your hypo, I suppose someone could wake up A so she sues C, but your chain of causation really hasthe grotesque effect of making B's infringement worst than C's merely because it occurred earlier. I think the law of copyright only *punishes* B for his infringement of A's work. In doing so, B would not lose copyright to the entire derivative work. Indeed, this principle is implicit in the Tasini case (New York Times).

-- 

Rod Dixon
rod[_at_]cyberspaces.org
http://www.cyberspaces.org/
202-270-9422