Scope of copyright on derivative works

[Chris Travers]

On 9/29/07, Alexander Terekhov <alexander.terekhov at gmail.com> wrote:
>
> On 9/29/07, Chris Travers <chris.travers at gmail.com> wrote:
> [...]
> > I think I understand this statement by Mr Rosen.  I will let him correct
> me
> > if my explenation is wrong (IANAL).
> >
> > Suppose I write a book and include photographs copyrighted by you.  You
> give
> > me permission to prepare the book which includes the photographs but
> don't
> > mention sublicensing.  This permission would include an implied
> sublicense
> > right for me to negotiate with a publisher on the publication of the
>
> Nope. Feel free to sell copies of your book yourself. Unless my
> permission did mention sublicensing, your publisher would have to ask
> me for permission (and probably share his profits with me as well, not
> only you). Presumably he is vey much better than you at selling books
> (otherwise you would sell it yourself), so why can't I have my peace
> of his cake, just like you?



You can.  If you say, "You can use my work but I want royalties" that is
fine.  If I sublicense, you still get your royalties.  The point is that
licenses, as far as I can gather from reading legal analysis (IANAL)
generaly are interpreted to include all permissions required to meaningfully
exercise the permissions in the license.

Now, what I cant do in that arrangement is then sublicense an excerpt of the
book to be published as say a magazine article with your photos involved
unless that is granted since we are no longer talking about the original
work because you haven't granted me permission to do this.  This of course
assumes that you are giving me permission to publish the book or allow other
people to do so.  If this is the intent of the permission, I would see no
reason not to include an implied but limited sublicense right in it.


"See  Leicester v. Warner Bros., 47 U.S.P.Q.2d 1501, 1998 U.S. Dist.
> LEXIS 8366 (C.D. Cal. 1998), aff'd, 232 F.3d 1212 (2d Cir. 2000). In
> Leicester,  [**18]  a real estate developer employed an artist to
> create sculptural elements for inclusion in the courtyard of a
> building under construction in Los Angeles. The artist granted the
> owner the exclusive right to make three-dimensional copies of the
> work, and a non-exclusive right to make two-dimensional or pictorial
> copies.


Ok, note that this may be different than what I am talking about.  In the
book case, presumably the intent is for me to publish the book and
presumably you know that.  Hence if you are granting me the rights to use
this in a book, I have the right to do what I need to do in order to get it
published.  If, on the other hand, I am *not* allowed to sublicense beyond
the areas required to meaningfully exercise the license you grant (for
example, as a magazine article based on a book excerpt with your
photographs).

The developer allowed a motion picture company to film the
> sculptural elements as part of a movie. The artist sued the motion
> picture company, claiming infringement, on the grounds that the
> developer did not have the right to sub-license his non-exclusive
> right to make two-dimensional or pictorial copies.



This would still be correct.  The artist did not provide Warner Brothers
permission to make such representations.  This is different from the book
example, because, had he given Warner Brothers such a license, or had the
actual filming been done by the building owner, things might have gone
differently.


During the course
> of the litigation, the developer was granted a "sub-license" by the
> building's architect, who the court found to be a co-owner with the
> artist of some of the elements. The court found that the architect
> could not grant a sub-license to the developer because a non-exclusive
> license could not be sub-licensed. Id. at *17, 1998 U.S. Dist. LEXIS
> 8366. "



Again, this is correct in that the creation of the sublicense is not in this
case was not done in the course of merely exercising permissions granted
under the original license.  Hence it was separate, distinct, and it becomes
a matter of license divisibility rather than ability to execute the
permissions granted.

So I stand by my example.

Best WIshes,
Chris Travers
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