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Posted by Wilbur Slice on 01/11/06 20:27
On Wed, 11 Jan 2006 03:00:55 GMT, "PTravel"
<ptravel@travelersvideo.com> wrote:
>
>"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.
Your original point seemed to be that you either could not get a
compulsory license for a new arrangement of a song, or that even if
you could, you could not record and sell your new arrangement nor play
it in public. That is, of course, completely wrong. For it to be
true, the whole purpose of the compulsory license would have to be to
allow other artists to *exactly* copy the original. And, of course,
that's just silly. I can most certainly buy a compulsory license to
Born To Run and record my own acoustic-guitar-only version (which I
assume you'd agree is a new "arrangement") and release the recording
and play it publicly, as long as the royalties are paid. That's what
the compulsory license is all about.
Your new point, if I understand it, is that if I did that, I wouldn't
have copyright protection of my deriveed work. But that's half true
and half false. There are two copyrights at work here: the copyright
on the song itself, which would remain with the original author, and
the copyright on my recording of the song, which would be mine. I
don't think there would be any copyright on my "arrangement" (i.e.
acoustic guitar version), but there *would* be a copyright on my
recording.
>
>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.
Not protectable with respect to authorship, but certainly protectable
with respect to the performance.
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