Is inherited class a derivative work?

Michael Beck mbeck1 at
Wed Oct 24 12:44:17 UTC 2001

> -----Original Message-----
> From: Angelo Schneider
> Sent: Wednesday, October 24, 2001 08:12

> >
> That case is not about derived work but about "plain" copyright
> infringement.
> Derived work is something different.

Interesting. Somehow others see this case as a case about derivative work. From:

The court also rejected, among other things, Micro Star's fair use defense and
argument that its MAP files are not derivative works because they contain no art
files and, thus, do not appropriate any protected expression.

I suggest, you re-read the case again, especially the whole discussion about a
derivative work.

> Your sample has nothing to do with inheritance either ...

Why? You, as some others, have suggested that in order to declare something as
"derivative work", it has to contain parts of the original. The above case shows
that it doesn't have to be the case, that the original part can "assume a
concrete or permanent form" by a simple reference.

See, for example:
Micro Star further argues that the MAP files are not derivative works because
they do not, in fact, incorporate any of D/N-3D's protected expression. In
particular, Micro Star makes much of the fact that the N/I MAP files reference
the source art library, but do not actually contain any art files themselves.
Therefore, it claims, nothing of D/N-3D's is reproduced in the MAP files. In
making this argument, Micro Star misconstrues the protected work. The work that
Micro Star infringes is the D/N-3D story itself--a beefy commando type named
Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a
gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack
to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A
copyright owner holds the right to create sequels, see Trust Co. Bank v. MGM/UA
Entertainment Co., 772 F.2d 740 (11th Cir. 1985), and the stories told in the
N/I MAP files are surely sequels, telling new (though somewhat repetitive) tales
of Duke's fabulous adventures. A book about Duke Nukem would infringe for the
same reason, even if it contained no pictures.*fn5

Of course, the question would be whether a class can be compared to a story, and
if subclasses would qualify as "sequels" to the base class. I don't know, but if
had a super-cool grid class, I certainly would like the copyright to protect me
from anyone buying my grid, creating a subclass, and then marketing it against


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