The Derivative Right: Or Why Copyright Law Protects Foxes Better than Hedgehogs
15:4 Vanderbilt Journal of Entertainment and Technology Law 785-855
71 Pages Posted: 16 Mar 2013 Last revised: 29 Apr 2013
Date Written: March 13, 2013
Thirty-five years after its injection of the broad notion of “derivative work” in the US Copyright Act, serious doubts remain about its scope and purpose. Yet the scope of the derivative right directly impacts the range of lawful reuses of a work or, viewed from across the fence, reuses that a copyright owner can prohibit. This Article argues that the derivative right is, and should be, more than a safety net to catch unfixed performances and a few other, mostly marginal, uses. Using both a comparative and international perspective (notably under the Berne Convention), this Article attempts to demonstrate that the evolution of the derivative right both in the United States and in other jurisdictions (France, Germany, UK) teaches that, while the rights of reproduction and derivation self-evidently overlap, they have distinct targets and normative foundations and, perhaps more importantly for our purposes, respond to different tests. This Article contends that one should be able to identify those tests now, because the level of difficulty will increase as cases concerning UGC (and new forms of appropriation art) emerge in greater numbers.
Keywords: Derivative right, adaptation, appropriation art, originality, France, Germany, United Kingdom, United States, Berne Convention
JEL Classification: K11, K33
Suggested Citation: Suggested Citation