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The Tabberone™ Archives These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement. When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position. |
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Source: http://www.kmob.com/pdf/Noncopying%20Alterations%20--%20Erickson.pdf This is an excerpt from the pdf file. The document is 74 pages long. This is pages 20 through 23. Content jas not been altered. Relevant footnotes have been included. |
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Emphasizing the Copy in Copyright
BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2005 1/19/2006 11:41 AM 1. Static (one-time) alterations. As discussed previously in Part III.A, controversies over noncopying alterations prior to the enactment of the 1976 Act included the following static alterations: rebinding copyrighted print (for both restorative and nonrestorative purposes), manufacturing handbags from copyrighted fabrics, repainting hobbyhorses, and affixing designs removed from greeting cards and notepads to ceramic plaques. In each controversy, the defendants purchased copies of the respective plaintiff's works, altered the purchased copies, and then resold, or otherwise reused commercially, the altered copies. Following the 1976 Act, additional controversies arose over affixing copyrighted artworks to ceramic tiles, manufacturing baby bedding from copyrighted fabrics, and editing home video cassettes. Similar to their pre-1976 counterparts, the defendants in these more recent controversies purchased copies of the respective plaintiff's works, altered the purchased copies, and then resold the altered copies. In contrast to their pre-1976 counterparts, however, courts decided inconsistently whether these noncopying alterations infringed the respective plaintiff's copyrights. In the post-1976 era, the most litigated example of static alteration arose from affixing prints of copyrighted artworks to ceramic tiles. A circuit split developed in the Seventh and Ninth Circuits over whether the creation of these ceramic tiles amounted to the preparation of infringing derivative works. In Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 72 the defendant, without permission, purchased compilations of the plaintiff's copyrighted works, removed selected pages from the books, mounted the removed pages onto ceramic tiles, and then offered the tiles for sale. 73 The Ninth Circuit concluded that the defendant art company made "another version" of the plaintiff's works, and held that this other version was an infringing derivative work. 74 To arrive at its conclusion, the court explained, "The protection of derivative rights extends beyond mere protection against unauthorized copying to include the right to make other versions of, perform, or exhibit the work." 75 From the context, it appears that the Ninth Circuit equated copying with reproduction, but the court never explained why making another version of, performing, or exhibiting a work are not forms of "unauthorized copying." Two district courts in the Ninth Circuit have since followed the holding of Mirage; one district court found (and the Ninth Circuit affirmed) that affixing individual note cards to ceramic tiles created derivative works, 76 and another found that disassembling a copyrighted work and separately framing the individual pages likewise created derivative works. 77 A split in the circuits developed when A.R.T. Co. (formerly Albuquerque A.R.T. Co. in Mirage) successfully defended the same practice of mounting note cards onto ceramic tiles that the Ninth Circuit previously rejected. In Lee v. A.R.T. Co., 78 the Seventh Circuit expressly rejected the Ninth Circuit's distinction between tile-art mounting and traditional methods of framing. 79 Instead, it found that the copyrighted note cards were not transformed 80 by the tile art process because each piece of artwork "depict[ed] exactly what it depicted when it left [the] studio."The court opined that if the plaintiff's interpretation of the derivative right were followed, then "any alteration of a work, however slight, [would] require[] the author's permission." 81 82 In addition to the tile-art cases, courts have also addressed static alterations to copyrighted fabrics and videocassette tapes. Addressing alterations to copyrighted fabrics, a district court, in Precious Moments, Inc. v. La Infantil, Inc., 83 held that baby bedding manufactured with the plaintiff's copyrighted fabrics were not derivative works. In a similar fashion to the Seventh Circuit in Lee, the court opined that Mirage and its progeny erroneously "open the door for the most trivial of modifications to generate an infringing derivative work." 84 In Paramount Pictures Corp. v. Video Broadcast Systems, Inc., 85 a district court found that the defendant's appendage of commercial advertisements to the plaintiff's videocassettes did not create derivative works of its copyrighted motion pictures. Finding Mirage inapplicable (without disagreeing with the merits), the district court concluded simply, "The court does not recognize the addition of [defendants' advertisement] to a videocassette in any way recasting, transforming or adapting the motion picture." 86 Perhaps in reference to the holding in Mirage, the court added, "The result is not a new version of the motion picture." 87 |
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FOOTNOTES 72 856 F.2d 1341 (1988). For more regarding the issue of decompilation, see infra note 77. 73 Id. at 1342. The court explained the process in detail: |
| Since 1984, the primary business of appellant has consisted of: 1) purchasing artwork prints or books including good quality artwork page prints therein; 2) gluing each individual print or page print onto a rectangular sheet of black plastic material exposing a narrow black margin around the print; 3) gluing the black sheet with print onto a major surface of a rectangular white ceramic tile; 4) applying a transparent plastic film over the print, black sheet and ceramic tile surface; and 5) offering the tile with artwork mounted thereon for sale in the retail market. Id. |
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74 Id. at 1343. 75 Id. (emphasis added) (citing Lone Ranger Television v. Program Radio Corp., 740 F.2d 718, 722 (9th Cir. 1984); Russell v. Price, 612 F.2d 1123, 1128 n.16 (9th Cir. 1979)). 76 Muņoz v. Albuquerque A.R.T. Co., 829 F. Supp. 309 (D. Alaska 1993), aff'd, 38 F.3d 1218 (9th Cir. 1994) (unpublished opinion). As in Mirage, the defendant art company in Muņoz (which was the same defendant in Mirage) had affixed plaintiff's copyrighted works onto ceramic tile. See id. at 310-11. Unlike Mirage, however, the defendant did not disassemble plaintiff's artwork; instead of mounting the separate pages from books, the defendant mounted individual copyrighted notecards. Id. Thus, Muņoz isolated for examination the process of mounting copyrighted artwork onto ceramic tile. For more regarding the issue of decompilation, see infra note 77. In defense of its tile art business, the defendant argued that mounting notecards onto ceramic tiles is indistinguishable from framing a print or painting-both practices "amount[] to nothing more than a display of the artwork." Muņoz, 829 F. Supp. at 314. The district court did not agree. Observing that the defendant "permanently affix[ed]" the notecards, the court concluded that the original artwork was indeed recast, transformed, or adapted. Id. The court distinguished framing because "[i]t is commonly understood that this [framing] amounts to only a method of display," and that "it is a relatively simple matter to remove the print or painting and display it differently if the owner chooses to do so." Id. In making one final distinction, the court noted that "tiles lend themselves to other uses such as trivets (individually) or wall coverings (collectively)." Id. The Ninth Circuit affirmed the decision of the district court in an unpublished opinion. Muņoz, 38 F.3d 1218. 77 Greenwich Workshop, Inc. v. Timber Creations, Inc., 932 F. Supp. 1210 (C.D. Cal. 1996). As in Mirage, the defendant art company (a different defendant from that in Mirage) disassembled plaintiff's books and resold the separate pages. See id. at 1211. Unlike Mirage, however, the defendant did not mount plaintiff's artwork onto ceramic tile; instead, the defendant matted and framed the individual bookplates. Thus, Greenwich isolated for examination the process of disassembling and reselling individual pages of a copyrighted work. In defense of its business model, the defendant in Greenwich relied on the Muņoz opinion, which endorsed the practice of framing as a simple method of display that did not amount to preparing a derivative work. Id. at 1213. Although ruling that the defendant infringed "the plaintiff's copyrights in both the artwork and the book," the court appears to have based its finding exclusively on the defendant's removal of pages from the plaintiff's books. Id. at 1214-15. For a thoughtful discussion of the decompilation of collected works at issue in Mirage and Greenwich, which this Comment does not address, see Steve Lauff, Note, Decompilation of Collective Works: When the First Sale Doctrine Is a Mirage, 76 TEX. L. REV. 869, 889 (1998). 78 125 F.3d 580 (7th Cir. 1997). Lee endorses the exact mounting process that the Ninth Circuit found infringing in Muņoz v. Albuquerque A.R.T. Co., 38 F.3d 1218 (9th Cir. 1994) (unpublished opinion), aff'g, 829 F. Supp. 309 (D. Alaska 1993). For more on Muņoz, see supra note 76. Lee directly addresses the process of mounting copyrighted works onto ceramic tile, avoiding the decompilation issue present in Mirage. 79 Lee, 125 F.3d at 581 (agreeing with the district court that this is "a distinction without a difference"). |
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If changing the way in which a work of art will be displayed creates a derivative work . . . then the derivative work is "prepared" when the art is mounted;
what happens later [that is, permanent affixation] is not relevant, because the violation of the § 106(2) right has already occurred. If the framing process
does not create a derivative work, then mounting art on a tile, which serves as a flush frame, does not create a derivative work. What is more, the ninth circuit
erred in assuming that normal means of mounting and displaying are easily reversible. A painting is placed in a wooden "stretcher" as part of the framing process;
this leads to some punctures (commonly tacks or staples), may entail trimming the edges of the canvas, and may affect the surface of the painting as well. . . . As
a prelude to framing, photographs, prints, and posters may be mounted on stiff boards using wax sheets, but sometimes glue or another more durable substance
is employed to create the bond. Id. |
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80 Id. at 582. The Seventh Circuit concluded that tile art did not fit any of the enumerated categories of derivative works defined in § 101, and proceeded to examine whether the mounting process recast, transformed, or adapted the copyrighted notecards. Concluding, without elaboration, that mounting artwork onto tile does not recast or adapt the notecards, the court acknowledged that the process might come closer to transforming the works, but ultimately concluded the question in the negative: "The art was bonded to a slab of ceramic, but it was not changed in the process. It still depicts exactly what it depicted when it left [the] studio." Id. 81 Id. 82 Id. 83 971 F. Supp. 66 (D.P.R. 1997). 84 Id. at 69. Although the Seventh Circuit had not yet decided Lee, the district court in Precious Moments contrasted the district court opinion in Lee, see supra notes 78-82, with the decisions in both Mirage, see supra note 72, and Muņoz, see supra note 76, and agreed with the district court opinion in Lee. Id. at 68-69. 85 724 F. Supp. 808 (D. Kan. 1989). 86 Id. at 821. The court also found inapplicable Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009 (7th Cir. 1983). In prior reference to Mirage and Artic, the court noted, "In both cases, the derivative work transformed, adapted or recast the original work into a new and different one." Paramount, 724 F. Supp. at 821. For more on Artic, see infra notes 90-95. 87 Paramount, 724 F. Supp. at 821. |
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