Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Ets-Hokin v Skyy Spirits, 225 F.3d 1068 (9th Cir. 2000) Under the Copyright Act, a work is not a "derivative work" unless it is "based upon one or more preexisting works" and, in order to qualify as a "preexisting work," the underlying work must be copyrightable. The Act does not make this point explicitly, nor does it define "work," but a reading of the statute as a whole and its legislative history compel this conclusion. Turning first to the statute, several provisions point to the requirement for the underlying, "preexisting work " to be copyrightable. Under section 106, the "owner of copyright" has "exclusive rights" to "prepare derivative works based upon the copyrighted work." Id. S 106(2) (emphasis added). The statute thus presupposes that the preexisting work--that is, the work that underlies the derivative work--is copyrightable. Other provisions buttress this reading. Under section 102, titled "[s]ubject matter of copyright: [i]n general," copyright protection "subsists . . . in original works of authorship." 17 U.S.C. S 102(a). Such "original works of authorship" include not only underlying (preexisting) works but also derivative works and compilations. See id. S 103(a) ("The subject matter of copyright . . . includes compilations and derivative works"). It is significant that the term "works" is used in defining the "subject matter of copyright" and that all of these types of works are subject to copyright. It is also significant that the Copyright Act specifically limits the scope of copyright protection for derivative works (and compilations). Under section 103, copyright 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." Id.S 103(a). It would make little sense to specify that a derivative work's copyright does not extend to any part of that work using "preexisting material in which copyright subsists" if that material "has been used unlawfully" unless the material is itself copyrightable