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Posted by Lee Hollaar on 01/12/06 22:00
In article <h9fds1djh04fmg9513im9e3i4ob4um2j3d@4ax.com> Wilbur Slice <wilbur@wilburslice.com> writes:
> ... And what >is an "unauthorized" derivative work?
As I discuss below, at least with respect to derivative works in Section
103(a), the test is not "unauthorized" but "has been used unlawfully."
>I don't need to get authorization to do my own version of that song,
>except in the form of the compulsory license.
Depends on what you want to do with your version of the song. The
compulsory license provisions of Section 115 apply ONLY to the
making and distribution of phonorecords.
Things that it does not apply to include:
- Public performance of the work
- Reproduction or distribution of something that is not a phonorecord,
which does not include motion pictures or other audiovisual works.
>But I don't see that as "authorization" because the author can't deny me
>that license.
Again, "authorization" is not the test; "has been used unlawfully" is.
Here's what Congress said in H.R. Rep. 94-1478 in its section-by-section
analysis of the Copyright Act of 1976:
Under this provision, copyright could be obtained as long as the
use of the preexisting work was not unlawful, even though the
consent of the copyright owner had not been obtained. For instance,
the unauthorized reproduction of a work might be lawful under the
doctrine of fair use or an applicable foreign law, and if so the
work incorporating it could be copyrighted.
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