Recognizing the Derivative Works Right as a Moral Right: A Case Comparison and Proposal

Abstract

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.

Keywords: copyright, adaptation, derivative works, moral rights, First Amendment