[cc-sampling] Copyright of Derivative Work

Glenn Otis Brown glenn at creativecommons.org
Sat May 24 19:03:41 EDT 2003


On Fri, 23 May 2003 11:29:00 -0400, "Sarah Brown"
<sbrown at old.law.columbia.edu> said:
> >All advertising and promotional uses of a commercial nature are excluded
> >from the above rights, except for advertisement and promotion of the
> >Derivative Work(s) that you are creating from the Work and Yourself as
> >the author thereof.
> 
> What happens to the copyright of the Derivative Work?
> 
> It seems you may need some language that says something like "The
> Derivative Work as a whole can be copyrighted, however only those
> aspects that are not a part of the original are protected."

This is another really good point.  Here's another potential problem that
could happen under the draft as it's written now (I think so, anyway):  I
use a distinctive trumpet riff from your licensed song in mine, then
copyright my song. The next time someone tries to sample that trumpet
riff, I sue them for copyright.  (The nightmare may not be quite that
simple, but it's scary enough that we want to make sure to avoid it.)

Sarah's proposal above is nice, though I'm not sure if as-worded it would
get around the example above. In any case, it's a big improvement that
we'll put it in the "duly noted" column.  Maybe we could put up an
"annotated" version of the original draft language up on our site, so
people can track changes?

Are there any other problems this point raises? Can we imagine any
scenario in which the Sampler deserves to claim some measure of
protection in the Sampled material as incorporated into the new song?

Glenn

> 
> If you don't, would something like this be able to happen?
> 
> I want to use a song in a car commercial, but it's covered by this
> license, so I can't. Instead, I take that song and make a new one--say
> I add 24 hours of a baby crying before the song, and then 24 hours of
> a baby laughing after the song. (It wouldn't really matter what you
> added--you'd just need to substantiate that the complete original was
> an "insubstantial portion" of your Derivative Work.)  Then, couldn't I
> just use a section of "my" song, which I've copyrighted, that was
> mostly just the original song I'd wanted to use?
---------------------
Glenn Otis Brown
Executive Director
Creative Commons
glenn at creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)



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