Author(s): Pamela Samuelson
Year: 2012
Abstract:
The
Copyright Act of 1976 confers on authors an exclusive right to prepare
derivative works. It defines this term as “a work based upon one or more
preexisting works,” giving nine examples to illustrate the concept and
ending with “or any other form in which a work may be recast,
transformed, or adapted.” This right has been unproblematic in cases
involving the nine exemplary derivatives and close analogues, but highly
problematic in some cases construing the last clause.
This
Article shows that the exclusive right to prepare derivative works is
narrower in scope than critics have feared. The legislative history
reveals that the definition was intended to clarify the scope of this
right, which was accomplished through the nine examples, which have key
characteristics in common, illustrating the types of derivatives meant
to be covered by this right. To be consistent with the text of the
statute, the legislative history, and the constitutional purpose of
copyright, the derivative work should only be infringed under the last
clause of the definition only if the plaintiff’s claim involves one of
the exemplary derivatives or close analogues.
The Article also
considers numerous provisions and doctrines of U.S. copyright law that
limit the reach of the derivative work right, thereby promoting the
constitutional purpose of copyright and policies favoring ongoing
innovation and competition, free expression interests of subsequent
authors, and privacy and autonomy interests of users. The Article
considers a handful of derivative use cases that have given overbroad
interpretations to the derivative work right and explains why these
decisions are unsound.
Keywords:
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2138479