Viral permissiveness

dtemeles at dtemeles at
Mon Jan 26 06:27:22 UTC 2009

Good morning John,

I assume that what you are saying is that a non-exclusive licensee of  
an original work that creates a derivative work can sue for  
infringement of the original work to the extent it is included in the  
derivative work.

Do you have any support for your assertion?  I suggest that you cannot  
find any credible legal support for your position.

17 U.S.C. § 103(b) provides:

The copyright in a compilation or derivative work extends only to the  
material contributed by the author of such work, as distinguished from  
the preexisting material employed in the work, and does not imply any  
exclusive right in the preexisting material. The copyright in such  
work is independent of, and does not affect or enlarge the scope,  
duration, ownership, or subsistence of, any copyright protection in  
the preexisting material.

I think an extreme example might highlight why your assertion cannot  
be true.  Suppose that Pixar grants to me a non-exclusive license to  
make a derivative work of one of their films.  I create and then  
release a derivative that adds a 20 minute prequel and a 20 minute  
scene in the middle of the movie to enhance a story line in the  
prequel.  I register the copyright on the derivative movie (which by  
law only covers the original material I added to the movie). A  
third-party obtains a copy of the derivative work from me, lops off  
the prequel and the 20 minute scene that I added and then sells a  
million copies of the movie (which is simply the original movie).  I  
then bring suit for copyright infringement in Federal Court... do you  
really think that I would be entitled to recover a dime for the  
infringer's copying and sale of the Pixar film simply because the  
infringer obtained the movie from me, a non-exclusive licensee?  No  

Quoting John Cowan <cowan at>:

> dtemeles at scripsit:
>> In short, a non-exclusive licensee of code cannot sue others for
>> "infringing" copyrights in that code because he has no copyrights in it.
>> He would have copyrights only in the modifications he created.
> Not quite.  If a derivative work is made under license from the original
> creator, then the maker has full copyright in the derived work, and could
> (for example) sue for infringement of parts that were copied from his
> work even if they were also part of the original work.  The questionable
> part is whether a work made by linking new code to old is a derivative
> work or not; most people think it is.
> IANAL; this is not legal advice, but it is not the unauthorized practice
> of law either.
> --
> Barry gules and argent of seven and six,        John Cowan
> on a canton azure fifty molets of the second.   cowan at
>         --blazoning the U.S. flag     

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