Re: A Little Linguistic Playground

On 03/30/1999, Rod Dixon <rod[_at_]cyberspaces.org> wrote:
>
> On Mon, 29 Mar 1999, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
> >
> > If you translate a copyrighted work without permission, though,
> > not only are you infringing, but you lose any claim to copyright
> > protection in the original elements you added in your translation.
>
> Your last sentence is the point at which you lose me. We were
> originally discussing section 103(a) that includes the language "does
> not extend to any part of the work in which such material has been used
> unlawfully." If courts have interpreted this provision by dropping the
> words "any part of," this would seem to be a rather significant error.
> Nonetheless, I am intrigued and will take a look at your article.
>

The question is what "any part of the work in which such material has been used unlawfully" means. I think it can't mean only "you don't get copyright in the unlawfully copied material itself"; that seems self evident and would be true under 102(a)'s requirement of originality in any event. The legislative history of the provision suggests that it means that where you have *intermingled* your work and the infringing material, you can't get copyright in the intermingled result.

Congress offered two contrasting examples. One was the translation, where the intermingling occurred throughout the work. There, you get no copyright at all, despite your original contributions. The other was an anthology, where only one particular work collected in the compilation was infringing. There, you could still copyright your original contributions, because the infringing "part" was segregated. See H.R. Rep. No. 94-1476, at 57-58 (1976), 1976 USCCAN 5659, 5671.

By the way, I argue in my article that this is not the right approach, and that copyright law should instead track patent law's "blocking patents" doctrine.

Mark A. Lemley
Professor of Law, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

Information on UT's Intellectual Property program: http://www.utexas.edu/law/acadprogs/intelprop/

My publications list: http://www.law.utexas.edu/lemley/pubs.htm Received on Wed Mar 31 1999 - 15:31:20 GMT