Chapter 6

The Derivative Work andDistribution Rights

The Right to Make Derivative Works

Section 106(2)

What is a Derivative Work?

A derivative work takes an existing work and adapts it in some way to make a new work.

A derivative work must add new original expression. If the existing work is protected by copyright, the author of the derivative work must obtain a license to make a derivative work.

Examples of Derivative Works

Dramatization- Book into a play - Book into a movie

Translation

Example: Andrew Lloyd Weber took a book of poems about cats, added music and created the musical “Cats”.

Examples of Derivative Works

Virtually all sound recordings are derivative works because they involve transforming a song into a recorded medium.

Degree of Protection in Derivative Works

The copyright in a derivative work extends only to the original material contributed by the author of the new work. Copyright protects a derivative work only if the preexisting material is used with permission.

Example:

The Elvis Presley hit “Love Me Tender” was based on a public domain song called “Aura Lee.” No permission was required to create a derivative work from “Aura Lee.”

Example:

Puff Daddy wrote “I’ll Be Missing You” based on Sting’s “Every Breath You Take.” Puff Daddy had to obtain Sting’s permission to use his song. Sting granted permission in return for part ownership of “I’ll Be Missing You.”

Derivative Musical Arrangements

Whether an arrangement is protected as a derivative work depends on the amount of original expression that the arranger has added. Arrangements must contain “substantial variations” to the existing work.

The Distribution RightSection 106(3)

The Distribution Right

The copyright owner has the exclusive right to distribute and to authorize others to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership.

Record Piracy

Record piracy involves reproducing copyrighted sound recordings and distributing the unauthorized recordings. Record piracy always involves a violation of the copyright owner’s reproduction right and distribution right.

Penalties for Record Piracy

Criminal copyright infringement exists where a person infringes copyright for commercial advantage or private commercial gain.Penalties are up to 5 years in prison and $250kin fines.

Federal Anti-Bootlegging Statute

Prohibits recording a concert and selling copies of the recording. Penalties are up to 5 years in prison and $250kin fines.

State Laws

Most states have laws that prohibit the reproduction and distribution of sound recordings. Unlike the Copyright Act, the state laws apply to recordings made prior to 1972.

The First Sale Doctrine

Once the copyright owner sells or gives away a copy or phonorecord, she has no further rights in that particular copy. This is why you are allowed to sell your used CDs and DVDs.

Record Rental Amendment Act of 1984 prohibits renting records without label / music

publisher consent.

END OF CHAPTER 6