Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Monday, September 20, 2010

The Derivative Works Right

Christina Bohannan, University of Iowa College of Law, has published Taming the Derivative Works Right: A Modest Proposal for Reducing Overbreadth and Vagueness in Copyright, at 12 Vanderbilt Journal of Entertainment & Technology Law 669 (Summer 2010). Here is the abstract.
The Supreme Court's recent 8-1 decision in United States v. Stevens only served to reiterate the Court's concern with overbreadth in First Amendment challenges to statutes. Concluding that the statute in question prohibited a good deal of speech that was unrelated to the statute's legitimate target, the Court held that the statute was substantially overbroad and therefore invalid.

Stevens as well as earlier First Amendment decisions shed considerable light on the problems of overbreadth and vagueness in copyright law, particularly the derivative works right. The copyright holder’s derivative works right prohibits others from making any work “based upon a copyrighted work” that “modifies, transforms, or adapts” the copyrighted work in any way. Because all new expression must necessarily borrow from existing expression to some degree, the derivative works right sweeps a good deal of speech within its prohibition, much of which is either harmless to the copyright holder or else outside the legitimate boundaries of copyright protection. While the fair use doctrine purports to protect some of this new expression, fair use is vague and unpredictable in application, particularly when it intersects with the derivative works right. Further, the doctrine can be asserted only after a speaker has risked an infringement claim.

This Article compares the Copyright Act and the way courts have applied it to a variety of other provisions that limit speech and that have been struck down or construed narrowly on overbreadth grounds. It demonstrates considerable overbreadth and vagueness in the scope of copyright protection, arguing for narrowing rules of construction that will mitigate these First Amendment concerns.
Download the article from SSRN at the link.

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