January 4, 2004
What Makes it a Derivative?
Jason Schultz discusses remixing, copyright, and trademark in this post. He writes:
“Traditionally, derivative works have been things like movies based on best-selling books or sequels based on an original hit. In other words, an entirely new and arguably ‘original’ work that draws extensively and necessarily from an older one. It has not traditionally encompassed minor variations on a theme, contextual changes, or commentary on the original work.
Jason surveys some cases involving such “minor variations.”
It also might be worth checking out the other half of the edited film cases Jason mentions – the Cleanflicks parties. Cleanflicks, as opposed to ClearPlay, sells edited copies of film (buying one legal copy for each edited one they sell), but it’s a similar “minor variation.” However, from what I know, the caselaw is far less favorable in this case. Cleanflicks isn’t that different from Kinkos’ making coursepacks (see also the Michigan case) or (though not a derivatives issue) MP3.com’s space-shifting. In the latter cases, though the action when taken by the owner of the copy might have been fair use, it was not when taken by the third-party for money. As Jason notes, first sale doesn’t help here because copies are being made. But let’s even say that Cleanflicks was somehow producing the edits without making a copy. Even then, first sale wouldn’t necessarily help. First sale only limits the distribution right, so the derivative works right is still fair game, just as it was in the Albuquerque ART case that Jason discusses. (For more on these cases, see this debate at Berkeley).
Filed by Derek Slater at 2:03 am under General news
Comments Off on What Makes it a Derivative?
