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the right to prepare derivative works

Overview:

This section is still under development. Hopefully, we will publish updated in Summer 2007.


Issues:
    There is a spectrum between simply passing along a copy and transforming a copy into into an original form to reach a new audience. At what point does the original author's right to make derivative works limit the buyer's right to resell a lawfully acquired original work?

    This is a heavily litigated issue.



Illustrative Cases:
    New York Times v. Tasini (U.S. 2001) (Full Text) (Oral Arguments)
    Periodical publishers, who own the copyright in collective work consisting of freelance authors' individual contributions, are not entitled to make underlying work available to electronic database without freelance authors' consent. An electronic database of articles and materials is not a privileged revision of the original collection.

    Faulkner v. National Geographic Enterprises, Inc. (2nd Cir. 2005) (Full Text - PDF)
    Magazine publisher that owns copyright in a collective work is privileged to revise that collective work. In this case, National Geographic magazine used incorporated plaintiff's contribution to a print periodical into "The Complete National Geographic", a complete collection of past print issues in digital form.

    Mirage Editions, Inc. v. Albuqueque A.R.T. Co. (9th Cir. 1988)
    Transformation of plaintiff's published art prints for resale infringes on right to prepare derivative works.

    National Geographic Society v. Classified Geographic, Inc. (Dist. MA, 1939)
    Rebinding lawfully purchased National Geographic articles for resale infringes plaintiff's right to publish magazine.

    Horgan v. MacMillan (2d Cir. 1986)
    Plaintiff argues that copyright in choreographed dance violated by defendant's production of book with many still photographs of dances being performed. Court makes an analogy to extracting clips from a movie. Whether dance movements can be ascertained from still frames is in dispute.
    DZ: There are not many cases concerning choreographed works.

    Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. (9th Cir. 1992)
    Device to enhance features of plaintiff's video game is not a derivative work. The device does not duplicate any protected audiovisual displays and is the type of technology that should be encouraged. Court compares to kaleidoscopes: they don't create an unlawful derivative work when pointed at protected art.

    Gilliam v. American Broadcasting Co. (2d Cir. 1976)
    Monty Python television shows produced for BBC are licensed for American broadcast. The creative producers claim their work was "mutilated" when the defendants edit shows for commercial breaks. Although actionable under European copyright laws protecting the "moral rights" of authors against distortion of their works, American law does not recognize moral rights beyond copyright protection. Alternative legal theories may provide relief: defamation, misrepresentation, unfair competition, etc.
    DZ: Should not view case as a contract dispute.

    Wojnarowicz v. American Family Assoc. (So. Dist. NY, 1990)
    Defendant uses visual artwork funded by the National Endowment for the Arts in political leaflets which disparge the works and the NEA. Respecting the morals rights of a visual artist, the court enjoins the degrading publication of his artwork.

    Lee v. Deck the Walls, Inc. (No. Dist. IL, 1996)
    Pressing plaintiff's picture postcards on ceramic tiles for resale does not infringe plaintiff's right to make derivative works. A derivate work requires originality beyond merely mounting pictures. Also allowable under the First Sale Doctrine.