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Posted by ptravel on 01/12/06 22:08
Wilbur Slice wrote:
> On Thu, 12 Jan 2006 04:20:15 GMT, "PTravel"
> <ptravel@travelersvideo.com> wrote:
> >> 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?
No, I didn't say that. I'm sorry that you're having so much trouble
comprehending some fairly straight-forward statements of law.
I'll try to keep it simple for you:
To the extent that your acoustic arrangement of Born to be Wild
incorporates original protectable expression by YOU, i.e. new material
that is not subsumed within the underlying work, the original author
does not have any ownership interest in that new material.
Is that clear enough?
> Of course he does.
Okay, read the above carefully -- maybe discuss it with someone else,
and when you understand what I said, come back. I'm tired of
responding to your demands that I defend something I never said.
> And what
> is an "unauthorized" derivative work?
This is basic copyright law: The right to prepare derivative works is a
reserved right pursuant to US copyright law. If you don't have
permission, you've committed copyright infringement. There are some
exceptions, e.g. compulsory licenses, fair use, etc.
> 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.
See above.
>
> > 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.
That's right. It is very clear.
>
>
> >
> >>
> >> 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.
It was clear to everyone but you.
>
>
> >
> >> 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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