17 U.S.C. §103 (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such works is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

17 U.S.C. §101 A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” When is the derivative material sufficiently distinguishable from the underlying original work to constitute a copyrightable work in its own right?

L. Batlin & Son, Inc. v. Snyder 536 F.2d 486 (2d Cir.) (en banc), cert. denied, 429 U.S. 857 (1976)

Entertainment Research Group, Inc. v. Genesis Creative Group, Inc. 122 F.3d 1211 (9 th Cir. 1997), cert. denied, 523 U.S (1998) Roth Greeting Cards v. United Card Co. 429 F.2d 1106 (9 th Cir. 1970)

17 U.S.C. §201 (a) Initial ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. (b) Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. Note: At no point in the copyright act is “author” defined.

SOLE AUTHORSHIP Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic 52 U.S.P.Q.2d 1609 (S.D.N.Y 1999) JOINT AUTHORSHIP A “joint work” is a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” (17 U.S.C. §101) Erickson v. Trinity Theatre, Inc. 13 F.3d 1061 (7 th Cir. 1994) Aalmuhammed v. Lee 202 F.3d 1227 (9 th Cir. 1999)

WORKS MADE FOR HIRE In Aalmuhammed, the court observed that Lee is not the legal author of Malcolm X; rather, Warner Bros. is, as a matter of a “work for hire” agreement. A “work made for hire” is either a work prepared by an employee within the scope of her employment, or a work commissioned as a contribution to a collective work pursuant to written agreement by both parties. The motivation for the U.S. “works made for hire” category is essentially economic, as the employer typically bears the financial burden. Work-for-hire principles vary wildly among countries, many lacking the legal principle entirely.

WORKS MADE FOR HIRE Who is an author? Community for Creative Non-Violence v. Reid 490 U.S. 730 (1989)

WORKS MADE FOR HIRE What is the “Scope of Employment”? Roeslin v. District of Columbia 921 F. Supp. 793 (D.D.C. 1995) 17 U.S.C. §105 Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyright transferred to it by assignment, bequest, or otherwise. Note: State and Local Governments, however, may assert copyright in their works.