Martin Dickopp wrote: [...] > 101 USC 17 defines a derivative work as > "a work based upon one or more preexisting works."
... in which a work may be recast, transformed, or adapted." ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ is the governing part of the US definition because all works are based upon one or more preexisting works in a metaphysical sense. --- Paramount Pictures Corp. v. Video Broadcasting Systems, Inc The case comes before the court on the plaintiff's motion for a preliminary injunction. [...] Plaintiff seeks to enjoin generally defendants from altering Paramount videocassettes by the addition of unauthorized advertisements, from creating and distributing derivative works from works in which plaintiff owns or is the exclusive licensee of the copyright, from interfering with plaintiff's prospective contractual relations for authorized advertisements, and from "shipping, delivering, holding for sale, distributing, returning, transferring, or otherwise moving or disposing of in any manner" videocassettes protected by plaintiff's copyright which have been altered by defendants prior to rental or sale. [...] Plaintiff next claims that by adding the advertisements to the videocassette the defendants have created unauthorized derivative works. The Copyright Act defines a derivative work as a work "based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." A work will be considered a derivative work only if it would be considered an infringing work if the material which it has derived from a preexisting work had been taken without the consent of a copyright proprietor of such preexisting work. The plaintiff has not presented any authority to support the conclusion that the mere addition of a commercial to the front of a videocassette recasts, transforms, or adapts the motion picture into what could represent an "original work of authorship." [... silly opinions in Mirage and Midway ignored ...] While defendants' advertisement is an original work, the court does not recognize the addition of it to a videocassette in any way recasting, transforming or adapting the motion picture. The result is not a new version of the motion picture. Plaintiff's final copyright claim is the unlawful distribution of mutilated versions or derivative works. This claim depends upon the success of either of the prior two claims regarding mutilation of a copyrighted work or the preparation of a derivative work. Since the court has found little likelihood of success on both of these claims, the distribution claim also fails to carry the day. Furthermore, in the absence of a derivative work [READ: in the absence of derivative work prepared without permission], the plaintiff's distribution claim is barred by the first sale doctrine which provides that when a copyright owner parts with title to a particular copy of his copyrighted work, he divests himself of his exclusive right to vend that particular copy. Plaintiff has not shown a substantial likelihood of success on any of its copyright claims. Plaintiff's motion for a preliminary injunction is denied. ---- Literary works (computer programs) are no different in this respect. You only have to be "the owner of a particular copy or phonorecord lawfully made." 17 USC 109. A copy is "lawfully made" if it is made by the copyright owner, made with the authorization of the copyright owner (copies made under exceptions to the copyright owner's exclusive rights aside of a moment). The test for first sale is not whether Video Broadcasting Systems, Inc. "acquired preexisting videocasettes" but whether the copies VBS owned were lawfully made (e.g. with the authorization of the copyright owner). And all copies of GPL'd works are "lawfully made" thanks to the unilateral permission to reproduce. regards, alexander. _______________________________________________ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss