Originally uploaded at SSRN.

Abstract

This is a paper about some of the most entertaining and challenging cases in America’s copyright law jurisprudence concerning derivative works as copyrightable subject matter, and the closely related right to prepare derivative works. The cases are entertaining because they involve very familiar works of authorship, and they are challenging because the rulings are often difficult to reconcile due to the fact that the courts are grappling with copyright’s elusive originality standard as applied to derivative works as well the copyright owner’s right to prepare derivative works. Instead of attempting to say something ‘original’ about originality, my goal for this article is to make sense out of these entertaining and sometimes contradictory decisions concerning derivative works.

I do this by discussing seven recurring problems and common scenarios, and relate these situations to how courts have handled these problems and scenarios in the context of the familiar maxim announced by Justice Holmes in 1903 about how it is permissible to copy the original but not to copy the copy. Although Justice Holmes made this statement in connection with his discussion of copyright’s originality standard, it relates to my article’s goals because a derivative work is a copy of the copy in that it adapts or modifies a preexisting work of authorship; this copy of the copy infringes if it is done without permission of the owner of copyright on the preexisting work, but this copy of the copy might be copyrightable as a derivative work when it is done with permission.

Providing this kind of structure is more than an exercise of selecting and sorting. Rather, the problems and scenarios illustrate the basic copyright law challenge of balancing the intellectual property and ownership rights of authors as an incentive to create against the need for subsequent authors to build upon and adapt the works of others. After all, derivative works by definition build upon preexisting works, and a court said long ago that few things are “strictly new and original throughout,” and every work “in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”

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