> From: Brad Thompson [mailto:[EMAIL PROTECTED]]
> The Anderson v. Stallone case is an oft-cited example of > this, where the > Rocky character was used without permission to create a new > work of fiction. > The judge ruled that the new work was the joint property of > both authors, > and that neither could use the work without the permission of > the other. (I > don't have a link for this one, but I know Ryan has it). You're almost right. [cites] A. Defendants Are Entitled To Summary Judgment Because Anderson's Treatment Is An Infringing Work That Is Not Entitled To Copyright Protection The Court finds that Anderson's treatment is not entitled to copyright protection. This finding is based upon the following determinations that will be delineated further below: (a) the Rocky characters developed in Rocky I, [*16] II and III constitute expression protected by copyright independent from the story in which they are contained; (b) Anderson's treatment appropriated these characters and created a derivative work based upon these characters without Stallone's permission in violation of Section 106(2); (c) no part of Anderson's treatment is entitled to copyright protection as his work is pervaded by the characters of the first three Rocky movies that are afforded copyright protection. ... and ... 4. Since Anderson's Work Is An Unauthorized Derivative Work, No Part Of The Treatment Can Be Granted Copyright Protection Stallone owns the copyrights for the first three Rocky movies. Under 17 U.S.C. section 106(2), he has the exclusive right to prepare derivative works based on these copyrighted works. This Court has determined that Anderson's treatment is an unauthorized derivative work. Thus, Anderson has infringed upon Stallone's copyright. See 17 U.S.C. section 501(a). Nevertheless, plaintiff contends that his infringing work is entitled to copyright protection and he can sue Stallone for infringing upon his treatment. Plaintiff relies upon 17 U.S.C. section 103(a) as support for his position that he is entitled to copyright protection [*26] for the non-infringing portions of his treatment. 17 U.S.C section 103(a) reads: The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which the material has been used unlawfully. Plaintiff has not argued that section 103(a), on its face, requires that an infringer be granted copyright protection for the non-infringing portions of his work. He has not and cannot provide this Court with a single case that has held that an infringer of a copyright is entitled to sue a third party for infringing the original portions of his work. Nor can he provide a single case that stands for the extraordinary proposition he proposes here, namely, allowing a plaintiff to sue the party whose work he has infringed upon for infringement of his infringing derivative work. =============================== To me, "Stallone" is the clearest and simplest interpretation of the issue of extensions to IP that I have ever read. Unlike most copyright lawsuits, which focus on transforming a work from one media to another, or claiming that the original work itself is not copyrightable, or claiming that the new work is not derivative of a the original work, "Stallone" is all about taking characters from one source, making a completely new work featuring those characters, and then trying to determine who holds copyright. In thise case, at least, the court is crystal clear: Anderson is simply out of luck - he doesn't own a copyright to the work, because it's an infringing derivative work. As I've mentioned in the past, this ties in with gaming via the Arneson suit vs. TSR. In that suit (which was a contract, not a copyright action), the court determined that the Monster Manual II was a derivative work of Dungeons & Dragons, thus Arneson was owed royalties, because the two books used the same stat block system and game terms to describe monsters. If stat blocks and game terms are sufficient to create copyrightable derivative works, then copyright can be said to encompass as a whole a roleplaying game system - even if specific "rules" could not be so protected. The power to authorize derivative works is one of the most valuable parts of a copyright, and one of the least understood by the average person. My experience is that even many lawyers don't understand the scope and effects of the way Title 17 treats derivative works either - which is one of the reasons I always advise people to consult >copyright< attorneys. Your run of the mill barrister can give you a good opinion on what Title 17 means, but the devil, as they say, is in the details; and for copyright law, the details are all caselaw, not black letter law. Ryan _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://www.opengamingfoundation.org/mailman/listinfo/ogf-l
