Recognizing the Derivative Works Right as a Moral Right: A Case Comparison and Proposal
Deidre A. Keller
Ohio Northern University - Ohio Northern University College of Law
April 10, 2012
63 Case W. Res. L. Rev. 511 (2013)
This piece considers the conflict between copyright and the First Amendment, particularly in the context of the derivative works right asking (1) how the right is deployed by parties and construed by courts and (2) whether it is overly broad. These questions are particularly timely and relevant in light of the Supreme Court’s recent decision in Golan v. Holder, 132 S. Ct. 873 (January 18, 2012) which upheld the constitutionality of the Uruguay Round Agreements Act thereby sanctioning the removal from the public domain of works previously available for use by secondary authors. The existing derivative works literature calls for limiting the right by strengthening fair use and First Amendment arguments. The piece proposes revisions to the Copyright Act intended to align the right with the Constitution, render transparent the asserted interests, and disallow authors’ successors from refusing to deal.
Number of Pages in PDF File: 45
Keywords: copyright, adaptation, derivative works, moral rights, First Amendment
Date posted: April 12, 2012 ; Last revised: February 26, 2013
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