Copyright, derivative works and fixation: is Galoob a mirage, or does the form(gen) of the alleged derivative work matter?

ABSTRACT

The Copyright Act gives a copyright owner the exclusive right "to prepare derivative works based on the copyrighted work." Does the Copyright Act require that a derivative work be "fixed in a tangible medium of expression" in order to be infringing? Existing case law is contradictory, stating both that a derivative work does not need to be "fixed" but that it does need to be embodied in some "concrete or permanent form." This contradiction stems from the fact that although the statutory language does not appear to require fixation, reading the statutory language literally would render illegal merely imagining a modified version of a copyrighted work. This contradiction can be eliminated by recognizing that what Congress intended was to prohibit the public performance of an unfixed derivative work, as well as the reproduction, public distribution, public performance or public display of a fixed derivative work. Congress' intent can be fully implemented by holding that the exclusive right to prepare derivative works is dependent upon, rather than independent of, the other four exclusive rights. The advantage of this interpretation is that it leaves all private performances of a derivative work, whether fixed or unfixed, outside the realm of copyright infringement.

I. INTRODUCTION

Suppose a person sits down at a piano and creates a new arrangement of a popular song. Later, he performs the new arrangement for some friends in the privacy of his home. Has he infringed the copyright in the musical work? Does it matter if he writes the arrangement down instead of memorizing it? (1)

Suppose another person cuts a photograph out of a book, mounts it upon a ceramic tile, and displays the mounted photo in her home. Has she infringed the copyright in the photograph? (2) Does it make a difference if she places a transparent piece of pink plastic over the photograph before displaying it? (3) What if she paints the photo with pink watercolor instead of framing it with pink plastic? (4) What if she offers the pink-framed photo for sale at her local swap meet, or on the Internet? (5)

Suppose a company creates an electronic device that alters the display of a popular video game. A teenager plays the video game in his home while using the device. Has he infringed the copyright in the video game? If so, is the device manufacturer liable for contributory infringement? (6)

Finally, suppose that a person watching a videotape or DVD at home fast-forwards through certain parts of a movie, or presses the mute button during playback. Has she infringed the copyright in the movie? Suppose instead that a company sells software that automatically instructs the VCR or DVD player to skip over certain portions of the movie or to mute certain words. If the same person uses the software while watching the movie, has she infringed? If so, is the company liable for direct or contributory infringement? (7)