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Posted by PTravel on 01/12/06 04:20
"Wilbur Slice" <wilbur@wilburslice.com> wrote in message
news:r1qas112bof80egurb69uiln0vehj4hfie@4ax.com...
> 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.
My original point was that the owner of the underlying work doesn't own
rights in unauthorized derivative works, and the author of the unauthorized
derivative works owns the rights in that portion which consitutes original
protectable expression.
> That is, of course, completely wrong.
What you wrote is completely wrong, but has nothing to do with anything that
I said. Feel free to argue with yourself, though.
>
> Your new point, if I understand it, is that if I did that, I wouldn't
> have copyright protection of my deriveed work.
You don't understand it. Read again what I wrote.
> 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.
We weren't discussing the copyright in the recording. We were discussing
the derivative work which consists of an arrangement of a protectable work
of expression produced pursuant to a compulsory license.
> 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.
And apples grow on trees. That statement has as much to do with this
discussion as yours about copyright in the 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.
Well, you'll excuse if I don't find your analysis compelling. Lee Hollaar
is an author and professor with considerable expertise in intellectual
property law. I'm an intellectual property attorney. You, unfortunately,
are someone who missed the point, which has to do with ownership of rights
of those portions of derivative works that constitute original works of
authorship.
>
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