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Posted by PTravel on 01/11/06 03:00
"Lee Hollaar" <hollaar@antitrust.cs.utah.edu> wrote in message
news:dq1rbr$1hn$1@antitrust.cs.utah.edu...
> In article <9OZwf.82121$tV6.54867@newssvr27.news.prodigy.net> "PTravel"
<ptravel@travelersvideo.com> writes:
> >> 1) Arrangements...
> >> If you arrange a song which is protected by copyright, the copyright
> >> owner automatically owns your arrangement. You cannot publish
> >> or perform it or distribute recordings of it without their permission.
> >
> >Well, your answer is half-right. ;)
> >
> >An arrangement can constitute a protectable work of authorship. It is,
> >however, a derivative work of the original. Though you would own the
> >copyright in the arrangement, ...
>
> 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.
> 17 U.S.C. 103(a).
My point, which was expressed somewhat inartfully, was that the owner of the
copyright in the underlying work does not own rights in an unauthorized
derivative work. To the extent that the derivative work contains original
expression, that material would be subject to copyright protection with
rights vesting in the author of the unauthorized derivative work.
I've always been curious about the application of Section 103 (though not so
curious as to research it ;) ) -- if someone prepares an unauthorized
derivative work, it is obviously infringing. What happens if the owner of
the copyright of the underlying work attempts to use the unauthorized
derivative work in such a way as to implicate one of the reserved rights?
Section 103 appears to suggest that the author of the derivative work has no
legal recourse (at least in copyright), and the owner of the copyright in
the underlying work gets a free pass with respect to infringement.
In any event, the derivative work isn't original to the owner of the
copyright in underlying work, so it would not constitute a protectable work
of authorship with respect to such owner, contrary to what the OP suggested.
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