Subject: RE: The Copyright Act preempts the GPL
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Mon, 9 Feb 2004 13:19:54 -0800

 Mon, 9 Feb 2004 13:19:54 -0800
> Absent some additional "creative input" (e.g. selection of
> color) from human being, I wouldn't consider it a derivative 
> work. I don't think that my screen saver which does pretty 
> funny transformations of screen pictures creates any 
> derivative works. (work-for-hire? slavery? oh-my-god! ;-) )

As to creativity, "some" but "not much." The degree of creativity required
to create a copyrightable work can be slight. I can imagine a situation
where the mere decision to pass an original work through a specific
translator technology creates a unique derivative work. Tie-dying an image
on a t-shirt or creating a huge photographic blow-up for the side of a
building can create a derivative work of the original image, even though
those technologies doesn't involve huge amounts of creative input. 

More to your point, I think that you *cannot* create screen saver pictures
from copyrighted images without license from the copyright owner. Those are
derivative works. (I'll ignore issues of fair use and the difficulty of
detection by the copyright police.) For example, I believe that if Microsoft
or a Linux distributor included such a copyrighted image among their
distributed Windows or Linux desktop screen savers, they'd be sued for
copyright infringement, both for creating a derivative work and for
distributing copies of that derivative work. A screen saver program is
transformative enough to create derivative works.

/Larry Rosen

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