Derivative Works and Copyright: Scope, Termination, Infringement, Considerations for Drafting Permissions

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, March 20, 2018

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to IP counsel on derivative works and the scope of the derivative right. The panel will also discuss when it is copyright infringement to make/sell derivative works, and lessons from recent court decisions. The panel will offer insights on what this means for artists and their counsel when seeking copyright protection.

Description

Derivative works come in many forms—from the Mona Lisa with a Moustache to films like the Godfather and Harry Potter series, which are based on novels, to music that samples and uses lyrics from other songs to a new version of a computer program. Derivative works and the related IP rights are a complex area of the law.

In the recent case of We Shall Overcome Found. v. The Richmond Org. (S.D.N.Y. 2017), the court was asked to determine the validity of the copyright to the song, We Shall Overcome, which was registered as a derivative work in the 1960s. The court invalidated any copyright to We Shall Overcome. The court concluded that any trivial word change, such as from will to shall, was not enough to make the work a copyrightable derivative work.

Under the Copyright Act, “a derivative work prepared under authority of the grant [to prepare a derivative work] before its termination may continue to be utilized under the terms of the grant after its termination.” 17 U.S.C. §203(b). Terminating the grant affects the right to create future derivative works based on that copyrighted work. However, termination does not preclude continued use of any lawfully created derivative works. The practical consequences of the Copyright Act for derivative works need to be understood.

Listen as our authoritative panel of IP attorneys discusses when a work is actually derivative and the scope of the derivative right. The panel will also examine when it is copyright infringement to make/sell derivative works, and discuss lessons from recent court treatment. The panel will offer insight on what this means for artists and their counsel when seeking copyright protection.

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Outline

  1. When a work is derivative
    1. Musical
    2. Literary
    3. Software
    4. Others
  2. Scope of the derivative right
  3. Copyright infringement and derivative works
  4. Lessons from recent court treatment
    1. We Shall Overcome Foundation v. Richmond Org. (S.D.N.Y. Sept. 8, 2017)
  5. Practical considerations for drafting permissions to allow creation of a derivative work

Benefits

The panel will review these and other key issues:

  • What is a derivative work and does the examination vary depending on the type of work—musical, software, literary?
  • How have the courts treated derivative works?
  • What are the practical considerations for drafting permissions to allow creation of a derivative work?

Faculty

Daley, Thomas
Thomas F. Daley
Counsel
Leidos

Mr. Daley has significant experience in advising senior management on government contracting and intellectual property...  |  Read More

Dickstein, Tal
Tal Dickstein

Partner
Loeb & Loeb

Mr. Dickstein maintains a broad-based litigation practice with a concentration on intellectual property matters in the...  |  Read More

Elgin, Jennifer
Jennifer L. Elgin

Shareholder
Bean Kinney & Korman

Ms. Elgin specializes in copyright, trademark, and right of publicity issues. A former in-house counsel for...  |  Read More

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