The Derivative Right: Or Why Copyright Law Protects Foxes Better than Hedgehogs

15:4 Vanderbilt Journal of Entertainment and Technology Law 785-855

Vanderbilt Public Law Research Paper, 13-19

71 Pages Posted: 16 Mar 2013 Last revised: 29 Apr 2013

See all articles by Daniel J. Gervais

Daniel J. Gervais

Vanderbilt University - Law School

Date Written: March 13, 2013

Abstract

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

Gervais, Daniel J., The Derivative Right: Or Why Copyright Law Protects Foxes Better than Hedgehogs (March 13, 2013). 15:4 Vanderbilt Journal of Entertainment and Technology Law 785-855; Vanderbilt Public Law Research Paper, 13-19. Available at SSRN: https://ssrn.com/abstract=2233941 or http://dx.doi.org/10.2139/ssrn.2233941

Daniel J. Gervais (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615 322 2615 (Phone)

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