Re: A Little Linguistic Playground

On Sat, 27 Mar 1999, Jessica Litman <litman[_at_]mindspring.com> wrote:
>
> Bad news indeed. See, for example, Anderson v. Stallone, 11
> U.S.P.Q.2d 1161 (C.D.Cal. 1989), where one Timothy Anderson wrote a 31
> page treatment for a Rocky IV without first obtaining permission. The
> court held that, under 103(a), Anderson's copyright in his original
> contributions was forfeit because his treatment was an unauthorized
> derivative work. Anderson had sued Stallone for infringement (the
> actual Rocky IV apparently bore significant similarities to Anderson's
> Rocky IV treatment), but, without a valid copyright, he couldn't bring
> an infringement suit.

Mr. Anderson was apparently very unfortunate! I have not read the case, and you did not mention whether Anderson's "derivative" work had been derived from one of Stallone's screen plays, his films or what...

Nonetheless, it almost sounds as if the court was troubled by what it may have viewed as a classic case of copyright infringement on the part of Mr. Anderson. The proposition you cite that case for is more than a little disturbing, however. Section 103(a) generally provides that copyright does not extend to any part of a compilation or derivative work that includes preexisting material, not owned by the author of the compilation or derivative work. This is, perhaps, not a remarkable provision, but I do not think that it is a mere restatement of the definition of copyright infringement.

Yes, if someone takes a treatment and writes a screenplay based on the treatment, without authorization, they cannot turn around and sue the author of the treatment for copyright infringement. However, s103(a) is superlative if you give it such a broad reading. What does it matter, for instance, that the copyright owner of a compilation cannot claim copyright to preexisting material, not contributed by that same owner, if s103(a) strips all copyright ownership from the owner of the compilation just for including the infringing preexisting material? In other words, I suspect that the Anderson Treatment is not exactly the kind of *derivative* work s103(a) and (b) is directed toward. Section 103 issues frequently arise in the nature of compilations or collective works.

-- 

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