Abstract

http://ssrn.com/abstract=2138479
 


 



The Quest for a Sound Conception of Copyright's Derivative Work Right


Pamela Samuelson


University of California, Berkeley - School of Law

August 29, 2012

Georgetown Law Journal, Forthcoming
UC Berkeley Public Law Research Paper No. 2138479

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.

Number of Pages in PDF File: 52

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Date posted: August 30, 2012 ; Last revised: August 5, 2014

Suggested Citation

Samuelson, Pamela, The Quest for a Sound Conception of Copyright's Derivative Work Right (August 29, 2012). Georgetown Law Journal, Forthcoming; UC Berkeley Public Law Research Paper No. 2138479. Available at SSRN: http://ssrn.com/abstract=2138479 or http://dx.doi.org/10.2139/ssrn.2138479

Contact Information

Pamela Samuelson (Contact Author)
University of California, Berkeley - School of Law ( email )
Boalt Hall
341 North Addition
Berkeley, CA 94720-7200
United States
(510) 642-6775 (Phone)
(510) 643-2673 (Fax)
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