Derivative Works and Other Rights

Prof Merges – Intro to IP

2.24.09

Agenda

• Derivative Works: Definition and Rights

• Specific Works, Rights, and Limitations

• Moral Rights

“Little guy” sues film studio scenario

Hudson v. Universal Studios, 89 U.S.P.Q.2d 1132 (SDNY 2008)

“Pro se” plaintiff

No substantial similarity between play and film

Anderson v. Stallone

• Anderson’s “treatment”

– How different from Stallone’s 1-paragraph description of Rocky IV in press appearances

• “Pitch meeting” with MGM

– Effect of MGM “release”

Aside on the “market for ideas”

• Difficult to create “markets for ideas”

• “Arrow’s information paradox”

• One solution: property rights over ideas; reduces chances of being ripped off, makes it easier to disclose

Aside: preventing cases like Anderson

• Movie studios and other entertainment companies have elaborate procedures to prevent “access”

– Because popular works often give rise to copyright infringement/misappropriation claims

– The “unopened letter” policy

Sec. 101: Deriv. WorkA “derivative work” is a work based upon one or more

preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

Sec. 103. Subject Matter of Copyright: Compilations and Derivative Works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Sec. 106

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

Anderson Holding

• Plaintiff cannot sue Stallone for copyright infringement; derivative work here was unauthorized, so no claim against copyright holder

• House Report: distinguish compilations from derivative works

What about 3rd parties?

• “Even if this court were to interpret section 103(a) as allowing an author of an infringing work to sue third parties based on the non-infringing portions of his work, 106(2)” prevents suit against the underlying copyright holder.

• P. 506

Why 106(2) at all?

• Aren’t all derivative works “substantially similar,” so an infringement of 106(1) (right to make copies)?

Goldstein: Chain of derivatives argument …

• Book movie TV show plush toys lunch boxes clothing etc.

• Last item in chain may not be substantially similar to elements of the book . . .

Unauthorized derivative works

• Legal treatment: no rights for the author of the derivative work

• Actual practice: sometimes, an unauthorized “audition” results . . .

Video Game cases: p. 509

• See also MDY Industries, LLC v. Blizzard Entertainment, Inc., 89 U.S.P.Q.2d 1015(D. Ariz. July 14, 2008 )

• Derivative work: “bot” program for online gaming

– Contract issues, DMCA issues . . .

Mirage Editions v. Albuquerque ART, Inc. – p. 512

Derivative Work? First Sale?

Performance and Display Rights

• Detailed statutory provisions

• Paintings, sculpture etc.: “single place” exception

• Musical compositions vs. sound recordings – different works, different treatment …

Closely bound to limitations on rights

• Sections 107-122

• Broad exceptions (fair use, 107), and very specific exceptions (119, superstations; 122, recordings for the blind)

• Case study: rights in music

Copyright and music

• Musical compositions, vs.

• Sound recordings

Sound Recording: ℗ Kronos Quartet

Composition: © Phillip Glass

Sec. 114. Scope of Exclusive Rights in Sound RecordingsSec. 114

(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (2), (3) and (6) of section 106, and do not include any right of performance under section 106(4).

Bridgeport Music

• Held: statute (section 114) controls in place of “substantial similarity” analysis

• Widely criticized

• Recently rejected: New York state court (John Lennon “Imagine” case)

Nimmer criticism

The linchpin for the [Bridgeport Music] court's conclusion lies in its interpretation of Section 114(b) of the Copyright Act. *** [Section 114(b)] immunizes the maker of a sound-alike recording; if no sounds are recaptured, the newcomer is categorically exempt from liability to the owner of the sound recording.

From that proposition, the panel summarily reasons that if some sounds are recaptured, the newcomer's liability is complete. But it is submitted that that conclusion rests on a logical fallacy. By validating entire sound-alike recordings, the quoted sentence contains no implication that partial sound duplications are to be treated any differently from what is required by the traditional standards of copyright law.

Compulsory licensing

• Cable retransmissions

• Music “covers” – section 115

• Webcasting subscription services, section 114 (sound recordings)

– Compositions must always be licensed:

Moral rights

• Section 106A

• Attribution, Integrity, and “for works of recognized stature,” nondestruction