The Copyright Act preempts the GPL

Rod Dixon rodd at
Tue Feb 10 00:52:21 UTC 2004

I would add that the question as to the level of originality (i.e.
creativity) required for a derivative work may not be the same as it is
for original works. The federal circuits are not in agreement on this. The
Second Cicuit, for example, requires a two-part test to be met: something
more than trivial and the originality must be reflective of the
contribution to the derivative work (in other words, not rely so much on
the preexisting work to show originality). The 9th Circuit where Larry is
uses a much less rigorous standard. Posner in the 7th circuit has opinined
that the more rigorous standard is better because it minimizes tranaction
costs, and so we see the 7th circuit using the more rigorous standard too.

rod at

On Mon, 9 Feb 2004, Lawrence E. Rosen wrote:

> > Absent some additional "creative input" (e.g. selection of
> > color) from human being, I wouldn't consider it a derivative
> > work. I don't think that my screen saver which does pretty
> > funny transformations of screen pictures creates any
> > derivative works. (work-for-hire? slavery? oh-my-god! ;-) )
> As to creativity, "some" but "not much." The degree of creativity required
> to create a copyrightable work can be slight. I can imagine a situation
> where the mere decision to pass an original work through a specific
> translator technology creates a unique derivative work. Tie-dying an image
> on a t-shirt or creating a huge photographic blow-up for the side of a
> building can create a derivative work of the original image, even though
> those technologies doesn't involve huge amounts of creative input.
> More to your point, I think that you *cannot* create screen saver pictures
> from copyrighted images without license from the copyright owner. Those are
> derivative works. (I'll ignore issues of fair use and the difficulty of
> detection by the copyright police.) For example, I believe that if Microsoft
> or a Linux distributor included such a copyrighted image among their
> distributed Windows or Linux desktop screen savers, they'd be sued for
> copyright infringement, both for creating a derivative work and for
> distributing copies of that derivative work. A screen saver program is
> transformative enough to create derivative works.
> /Larry Rosen
> --
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