>Ambiguities in copyright precedent
Fortunately there are no ambiguities anywhere else in the law, which is why all civil lawsuits are decided in 10mins by a secretary and an intern
Fortunately there are no ambiguities anywhere else in the law, which is why all civil lawsuits are decided in 10mins by a secretary and an intern
Unlike a simple civil contract dispute, for example, where the ambiguity usually lies in the terms of the agreement between the parties, what I'm referring to is the ambiguity inherent in the federal case law precedent surrounding derivative works -- let me explain.
Derivative works, as defined by the Copyright Act of 1976, are those "based upon one or more preexisting works" that have been recast, transformed, and/or adapted from their original form. [1] Specifically, there is differing authority as to the requisite level of originality required for a derivative work. For example, in Gracen v. Bradford Exchange, Judge Posner held that a "derivative work must be substantially different from the underlying work to be copyrightable." [2] Compare this approach with that of the second circuit in Alfred Bell & Co. v. Catalda Fine Arts, Inc., which rejected any novelty requirement, holding that a "distinguishable variation" of the original work would suffice to trigger copyright for a derivative work based on public domain sources. [3]
The required amount of originality has produced a circuit level split in cases involving the infringement of the exclusive right to prepare derivative works. Particularly, pictures taken from lawfully purchased books and mounted to a tile were considered, by the ninth circuit, a "recast or transform[ation of] the individual images" sufficient to infringe the original artist’s section 106(2) right. [4] The seventh circuit, in a strongly worded opinion by Judge Easterbrook, rejected this approach finding that the pictures were merely "bonded to a slab of ceramic ... [and] not changed in the process." [5] Easterbrook opined that the seventh circuit’s inclusive view of derivative works would create an expansive moral rights regime not explicitly authorized in the 1976 Act. [6]
In other words, until the Supreme Court rules definitively and resolves the circuit split, the threshold of originality necessary for a derivative work depends on the precedent your jurisdiction follows. Hence why it's more ambiguous than is typical of other topics in federal law.
[1] 17 U.S.C. § 101.
[2] Gracen v. Bradford Exchange, 698 F.2d 300, 305 (7th Cir. 1983).
[3] Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951) ("It is clear, then, that nothing in the Constitution commands that copyrighted matter be strikingly unique or novel. Accordingly, we were not ignoring the Constitution when we stated that a 'copy of something in the public domain' will support a copyright if it is a 'distinguishable variation' ").
[4] Mirage Editions v. Albuquerque A.R.T., 856 F.2d 1341, 1344 (9th Cir. 1988).
[5] Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997).
[6] See id. at 582. Easterbrook observed: "If Lee (and the ninth circuit) are right about what counts as a derivative work, then the United States has established through the back door an extraordinarily broad version of authors’ moral rights, under which artists may block any modification of their works of which they disapprove. No European version of droit moral goes this far."