Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
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From Woods v Bourne, 60 F. 3d 978 (2d Cir. 1995)
In order for a work to qualify as a derivative work it must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989). The basis for copyright protection contained in both the constitution and the Copyright Act is originality of authorship. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.) (in banc), cert. denied, 429 U.S. 857 (1976). While a certificate of copyright registration, such as the one that Berlin obtained for the piano-vocal arrangement, creates a presumption of copyrightability, the existence of a registration certificate is not dispositive. Weissmann, 868 F.2d at 1320. We thoroughly discussed the standard of originality in a derivative work in our in banc decision in Batlin. There we held that "there must be at least some substantial variation [from the underlying work], not merely a trivial variation." Batlin, 536 F.2d at 491; accord Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir. 1980) ("[T]o support a copyright the original aspects of a derivative work must be more than trivial."). Further, "the requirement of originality [cannot] be satisfied simply by the demonstration o f ´physical skill' or ´special training' . . . ." Batlin, 536 F.2d at 491; see also Tempo Music, Inc. v. Famous Music Corp., 838 F. Supp. 162, 170 (S.D.N.Y. 1993) (discussing Batlin). Our discussions of the originality standard in recent decisions, such as Weissmann, 868 F.2d at 1321 and Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988), upon which Bourne relies, do not render the Batlin standard inapplicable. See Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir. 1994) (relying on Batlin as authoritative statement of originality requirement). |
