Re: A Little Linguistic Playground

On Fri, Mar 26, 1999, Jason Vogel <jasonvogel[_at_]ibm.net> wrote:
>
> 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.
         

     Although yours is the more intuitive position, I recently had cause to research the issue and came to the surprising conclusion that there was case law supporting the Lemley interpretation of the Littman position: namely, that if you create an infringing derivative work (that is, prepare a derivative work based on a third party's original work without that third party's permission) you may be denied copyright protection even for the original aspects of your infringing creation.

Howard Zaharoff, Esq.
Morse, Barnes-Brown & Pendleton, P.C.
1601 Trapelo Road
Reservoir Place
Waltham, MA 02451
(781) 622-5930 x237
(781) 622-5933 fax
email: hgz[_at_]buslaw128.com Received on Mon Mar 29 1999 - 13:55:15 GMT