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Posted by Wilbur Slice on 01/12/06 20:41
On Thu, 12 Jan 2006 04:20:15 GMT, "PTravel"
<ptravel@travelersvideo.com> wrote:
>
>"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,
What? Now that's something entirely new - now you're saying that if I
release my acoustic version of Born to be Wild, the orginal author
doesn't own any copyrights on the song? Of course he does. And what
is an "unauthorized" derivative work? I don't need to get
authorization to do my own version of that song, except in the form of
the compulsory license. But I don't see that as "authorization"
because the author can't deny me that license.
> 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.
Here is what you wrote:
***************************************
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, you couldn't do anything with it that
implicates a protected right, e.g. make a copy, distribute, perform
publicly, etc., without permission of the owner of the copyright of
the
underlying work.
****************************************
Specifically, you said I couldn't "make a copy, distribute, perform
publicly, etc., without permission of the owner of the copyright of
the underlying work." Seems pretty clear to me.
>
>>
>> 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.
Actually, you just said "copyright" and it was not clear that you were
excluding the recording copyright.
>
>> 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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