The Quest for a Sound Conception of Copyright's Derivative Work Right, 101
Available at: http://scholarship.law.berkeley.edu/facpubs/2335
Part I of this Article explains that, viewed in light of the evolution of the derivative work concept in the copyright revision process, the exclusive right to prepare derivative works is narrower in scope and more bounded than commentators have often feared. Part II considers characteristics of the nine exemplary derivatives in the statutory definition and explains why they should inform a sound interpretation of the last clause in the definition. By including these nine examples, Congress intended to provide guidance about the types of derivatives covered by this right. To be consistent with the text of the statute, the legislative history, and the constitutional purpose of copyright, derivative work liability should only be imposed under the last clause of the definition if the plaintiff's claim is analogous to one or more of the exemplary derivatives in the statutory definition. Part III discusses three plausible justifications for the grant of the derivative work right that, properly understood, constrain its reach. Part IV considers several provisions and doctrines of U.S. copyright law that further limit the reach of the derivative work right. The statutory exclusion of useful articles from the scope of copyright protection, for instance, meaningfully limits the derivative work right in a manner consistent with the constitutional purpose of copyright law and policies favoring ongoing innovation and competition. Fair use protects free-expression interests of next-generation authors, along with the first-sale limit, which protects privacy and autonomy interests of those who have purchased copies of copyrighted works. Part V discusses a handful of derivative-use cases that have given overbroad interpretations to the derivative work right and explains why these decisions are unsound.