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Lecture 9

PUBPOL 373 Lecture 1: September 13th Reading Notes

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Duke University
Public Policy Studies

September 13 Reading Notes Derivative Works  A “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, abridgement, 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.”  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  The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.  The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.  A compilation results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. Schrock v. Learning Curve Intern., Inc.  Breakdown: Learning Curve used Schrock’s services on a regular basis for about four years and thereafter continued to use some of his photos in its advertising and on product packaging. After Learning Curve stopped giving him work, Schrock registered his photos for copyright protection and sued Learning Curve and HIT for infringement. o There were usage restrictions limited to two years  The court classified the photos as “derivative works” under the Copyright Act-derivative of the “Thomas and Friends” characters o They recast, transformed, or adapted the three-dimensional toys into a different, two-dimensional medium  District Court dismissed Schrock’s claim because he had permission to make but not permission to copyright the photos o There is nothing in the Copyright Act requiring the author of a derivative work to obtain permission to copyright his work from the owner of the copyright in the underlying work.  The Appeals Court reversed saying as long as he was authorized to make the photos (which he was) he owned the copyright in the photos to the extent of their incremental expression  For copyrights of photos, in some cases, the original expression may be found in the staging and creation of the scene depicted in the photograph. More often would be the rendition of the subject matter, the effect, shading, focus, lens, and so on o Unless a photograph replicates another work with total or near-total fidelity, it will be at least somewhat original in the rendition (i.e. photographing the Mona Lisa)  The quantum of originality required for a copyright in a derivative work is the same as that required for copyright in any other work. o The relevant standard is whether a derivative work contains a “nontrivial” variation form the preexisting work “sufficient to render the derivative work distinguishable from [the] prior work in any meaningful manner.  HIT claimed its licensing agreement with Learning Curve expressly retained the intellectual property rights in all works that were based upon its copyrights. HIT also claims that the licensing agreement prohibited Learning Curve from granting any third parties copyright protection in derivative works based on HIT’s copyright. The licensing agreement is not in the record Selected Problems of Authorship and Co-Authorship  Initial Ownership: The authors of a joint work are co-owners of the copyright in the work  Works Made for Hire: The employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. o The work was that of an employee within the scope of employment as understood in agency law o The work was that of an independent contractor, within the enumerated set of works, (a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas) and subject to a writing indicating a work made for hire. o The hiring party can receive copyright through a written assignment CCNV v. Reid  Breakdown: CCNV and Reid agreed that the project would cost no more than $15,000, not including Reid’s services, which he offered to donate. The parties did not sign a written agreement. Neither party mentioned copyright. CCNV asked Reid to return the sculpture. He refused, and then filed a certificate of copyright registration for the piece in his name. CCNV then filed a competing certificate of copyright registration  Copyright ownership “vests initially in the author or authors of the work.” As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression.  Sculpture does not fit within any of the nine categories of “specially ordered or commissioned” works and no written agreement between the parties establishes the sculpture as a work for hire  A work is prepared by an employee whenever the hiring party retains the right to control the product o The skill required, the source of the instrumentalities and tools, the location of the work, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the extent of the hired party’s discretion over when and how long to work, the method of payment, the hired party’s role in hiring and paying assistants, whether the work is part of the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits, and the
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