Subject: RE: Is inherited class a derivative work?
From: "Lawrence E. Rosen" <>
Date: Wed, 24 Oct 2001 09:12:14 -0700 wrote:
> Why? You, as some others, have suggested that in order to 
> declare something as
> "derivative work", it has to contain parts of the original. 
> The above case shows
> that it doesn't have to be the case, that the original part 
> can "assume a
> concrete or permanent form" by a simple reference.
> See, for example:
> -------------------------
> Micro Star further argues that the MAP files are not 
> derivative works because
> they do not, in fact, incorporate any of D/N-3D's protected 
> expression. In
> particular, Micro Star makes much of the fact that the N/I 
> MAP files reference
> the source art library, but do not actually contain any art 
> files themselves.
> Therefore, it claims, nothing of D/N-3D's is reproduced in 
> the MAP files. In
> making this argument, Micro Star misconstrues the protected 
> work. The work that
> Micro Star infringes is the D/N-3D story itself--a beefy 
> commando type named
> Duke who wanders around post-Apocalypse Los Angeles, shooting 
> Pig Cops with a
> gun, lobbing hand grenades, searching for medkits and 
> steroids, using a jetpack
> to leap over obstacles, blowing up gas tanks, avoiding 
> radioactive slime. A
> copyright owner holds the right to create sequels, see Trust 
> Co. Bank v. MGM/UA
> Entertainment Co., 772 F.2d 740 (11th Cir. 1985), and the 
> stories told in the
> N/I MAP files are surely sequels, telling new (though 
> somewhat repetitive) tales
> of Duke's fabulous adventures. A book about Duke Nukem would 
> infringe for the
> same reason, even if it contained no pictures.*fn5
> ---------------------------
> Of course, the question would be whether a class can be 
> compared to a story, and
> if subclasses would qualify as "sequels" to the base class. I 
> don't know, but if
> had a super-cool grid class, I certainly would like the 
> copyright to protect me
> from anyone buying my grid, creating a subclass, and then 
> marketing it against
> me.

Do you think the ruling in the Micro Star case would have come down
differently had it not been a copyright case involving a fictional
storyline included in a game?  Since what was copied in that case were
the story characters and their human-like activities, can we distinguish
it from cases where what is copied is factual information?  Would the
ruling have been different if what was copied were the unprotectable
elements of the work, such as the non-expressive aspects of the APIs?
And referring to the Micro Star court's analysis of the fair use
factors, can we conclude that, because class inheritance does not affect
in any way the market for or sales of the inherited class, that the fair
use factors fall on the side of allowing inheritance without

/Larry Rosen

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