Subject: Re: Scope of copyright on derivative works
From: "Chris Travers" <chris.travers@gmail.com>
Date: Sat, 29 Sep 2007 12:39:43 -0700
Sat, 29 Sep 2007 12:39:43 -0700
On 9/29/07, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
>
> On 9/29/07, Chris Travers <chris.travers@gmail.com> wrote:
> [...]
> > I think I understand this statement by Mr Rosen.  I will let him correct
> me
> > if my explenation is wrong (IANAL).
> >
> > Suppose I write a book and include photographs copyrighted by you.  You
> give
> > me permission to prepare the book which includes the photographs but
> don't
> > mention sublicensing.  This permission would include an implied
> sublicense
> > right for me to negotiate with a publisher on the publication of the
>
> Nope. Feel free to sell copies of your book yourself. Unless my
> permission did mention sublicensing, your publisher would have to ask
> me for permission (and probably share his profits with me as well, not
> only you). Presumably he is vey much better than you at selling books
> (otherwise you would sell it yourself), so why can't I have my peace
> of his cake, just like you?



You can.  If you say, "You can use my work but I want royalties" that is
fine.  If I sublicense, you still get your royalties.  The point is that
licenses, as far as I can gather from reading legal analysis (IANAL)
generaly are interpreted to include all permissions required to meaningfully
exercise the permissions in the license.

Now, what I cant do in that arrangement is then sublicense an excerpt of the
book to be published as say a magazine article with your photos involved
unless that is granted since we are no longer talking about the original
work because you haven't granted me permission to do this.  This of course
assumes that you are giving me permission to publish the book or allow other
people to do so.  If this is the intent of the permission, I would see no
reason not to include an implied but limited sublicense right in it.


"See  Leicester v. Warner Bros., 47 U.S.P.Q.2d 1501, 1998 U.S. Dist.
> LEXIS 8366 (C.D. Cal. 1998), aff'd, 232 F.3d 1212 (2d Cir. 2000). In
> Leicester,  [**18]  a real estate developer employed an artist to
> create sculptural elements for inclusion in the courtyard of a
> building under construction in Los Angeles. The artist granted the
> owner the exclusive right to make three-dimensional copies of the
> work, and a non-exclusive right to make two-dimensional or pictorial
> copies.


Ok, note that this may be different than what I am talking about.  In the
book case, presumably the intent is for me to publish the book and
presumably you know that.  Hence if you are granting me the rights to use
this in a book, I have the right to do what I need to do in order to get it
published.  If, on the other hand, I am *not* allowed to sublicense beyond
the areas required to meaningfully exercise the license you grant (for
example, as a magazine article based on a book excerpt with your
photographs).

The developer allowed a motion picture company to film the
> sculptural elements as part of a movie. The artist sued the motion
> picture company, claiming infringement, on the grounds that the
> developer did not have the right to sub-license his non-exclusive
> right to make two-dimensional or pictorial copies.



This would still be correct.  The artist did not provide Warner Brothers
permission to make such representations.  This is different from the book
example, because, had he given Warner Brothers such a license, or had the
actual filming been done by the building owner, things might have gone
differently.


During the course
> of the litigation, the developer was granted a "sub-license" by the
> building's architect, who the court found to be a co-owner with the
> artist of some of the elements. The court found that the architect
> could not grant a sub-license to the developer because a non-exclusive
> license could not be sub-licensed. Id. at *17, 1998 U.S. Dist. LEXIS
> 8366. "



Again, this is correct in that the creation of the sublicense is not in this
case was not done in the course of merely exercising permissions granted
under the original license.  Hence it was separate, distinct, and it becomes
a matter of license divisibility rather than ability to execute the
permissions granted.

So I stand by my example.

Best WIshes,
Chris Travers




On 9/29/07, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
On 9/29/07, Chris Travers <chris.travers@gmail.com> wrote:
[...]
> I think I understand this statement by Mr Rosen.  I will let him correct me
> if my explenation is wrong (IANAL).
>
> Suppose I write a book and include photographs copyrighted by you.  You give
> me permission to prepare the book which includes the photographs but don't
> mention sublicensing.  This permission would include an implied sublicense
> right for me to negotiate with a publisher on the publication of the

Nope. Feel free to sell copies of your book yourself. Unless my
permission did mention sublicensing, your publisher would have to ask
me for permission (and probably share his profits with me as well, not
only you). Presumably he is vey much better than you at selling books
(otherwise you would sell it yourself), so why can't I have my peace
of his cake, just like you?


You can.  If you say, "You can use my work but I want royalties" that is fine.  If I sublicense, you still get your royalties.  The point is that licenses, as far as I can gather from reading legal analysis (IANAL) generaly are interpreted to include all permissions required to meaningfully exercise the permissions in the license.

Now, what I cant do in that arrangement is then sublicense an excerpt of the book to be published as say a magazine article with your photos involved unless that is granted since we are no longer talking about the original work because you haven't granted me permission to do this.  This of course assumes that you are giving me permission to publish the book or allow other people to do so.  If this is the intent of the permission, I would see no reason not to include an implied but limited sublicense right in it.
 

"See  Leicester v. Warner Bros., 47 U.S.P.Q.2d 1501, 1998 U.S. Dist.
LEXIS 8366 (C.D. Cal. 1998), aff'd, 232 F.3d 1212 (2d Cir. 2000). In
Leicester,  [**18]  a real estate developer employed an artist to
create sculptural elements for inclusion in the courtyard of a
building under construction in Los Angeles. The artist granted the
owner the exclusive right to make three-dimensional copies of the
work, and a non-exclusive right to make two-dimensional or pictorial
copies.

Ok, note that this may be different than what I am talking about.  In the book case, presumably the intent is for me to publish the book and presumably you know that.  Hence if you are granting me the rights to use this in a book, I have the right to do what I need to do in order to get it published.  If, on the other hand, I am *not* allowed to sublicense beyond the areas required to meaningfully exercise the license you grant (for example, as a magazine article based on a book excerpt with your photographs). 

The developer allowed a motion picture company to film the
sculptural elements as part of a movie. The artist sued the motion
picture company, claiming infringement, on the grounds that the
developer did not have the right to sub-license his non-exclusive
right to make two-dimensional or pictorial copies.


This would still be correct.  The artist did not provide Warner Brothers permission to make such representations.  This is different from the book example, because, had he given Warner Brothers such a license, or had the actual filming been done by the building owner, things might have gone differently.
 

During the course
of the litigation, the developer was granted a "sub-license" by the
building's architect, who the court found to be a co-owner with the
artist of some of the elements. The court found that the architect
could not grant a sub-license to the developer because a non-exclusive
license could not be sub-licensed. Id. at *17, 1998 U.S. Dist. LEXIS
8366. "


Again, this is correct in that the creation of the sublicense is not in this case was not done in the course of merely exercising permissions granted under the original license.  Hence it was separate, distinct, and it becomes a matter of license divisibility rather than ability to execute the permissions granted.
 
So I stand by my example.

Best WIshes,
Chris Travers