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 Jorie Gracen v. The Bradford Exchange, 698 F.2d 300 (7th Cir. 1983)
The briefs and argument in this court follow the district court in treating the principal question as whether Miss Gracen's painting and drawings are sufficiently original to be copyrightable as derivative works under 17 U.S.C. § 103. But this emphasis may be misplaced. The question of the copyrightability of a derivative work ("a work based upon one or more preexisting works, such as an . . . art reproduction . . . or any other form in which a work may be recast, transformed, or adapted," 17 U.S.C. § 101) usually arises in connection with something either made by the owner (or a licensee) of the copyright on the underlying work, as in Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir. 1980), or derived from an underlying work that is in the public domain, as in L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491-92 (2d Cir. 1976) (en banc). At issue in such a case is not the right to copy the underlying work but whether there is enough difference between the derivative and the underlying work to satisfy the statutory requirement of originality, see 17 U.S.C. § 102 (a), and thus make the derivative work copyrightable. Since the copyright owner 's bundle of exclusive rights includes the right "to prepare derivative works based upon the copyrighted work," 17 U.S.C. § 106(2), even if Miss Gracen's painting and drawings had enough originality to be copyrightable as derivative works she could not copyright them unless she had authority to use copyrighted materials from the movie. "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." 17 U.S.C. § 103(a). |
