Turtles All The Way Down (Sec. 103)

This is the latest in our series of posts marking the 50th anniversary of the Copyright Act of 1976. To find a list of all the posts in this series, click here.

The next stop in our tour of the Copyright Act is Section 103, which is where the Copyright Act considers secondary works. There are a bunch of things going on in Section 103. One of the most interesting to me is the introduction of layers of copyright. What happens when a work is built on previous material? Section 103 provides the answer.

Section 103 provides that these secondary works—compilations and derivative works—are subject to copyright in their own right. What is a compilation? What is a derivative work? Section 101 helps us out here. Under the statutory definition, a “compilation” is a work formed by assembling preexisting material. In addition, there is a special type of compilation called a collective work, which is a compilation where the preexisting material is itself independently copyrightable—a work made out of works. 

Notice the difference: a collective work is what might, in plain language, be called a compilation. It is a collection of copyrightable works, such as an anthology of poems, a record album, or an edited volume of essays. But a “compilation,” in Title 17 speak, is broader.  It consists of preexisting material whether or not it is copyrightable. If you squint, there’s a sense in which a poem, or even a novel, is a compilation—a compilation of words.

Meanwhile, under Section 101’s definition, a “derivative work” is an original work that is based on a preexisting work, but which recasts it in some way. The recasting might be as minimal as annotating the source material, or it might be substantial, such as a complete translation of a novel, or a choral arrangement made from a poem. If it is “recast, transformed, or adapted,” it is a derivative work.

Under Section 103, each of these works—compilations, collective works, and derivative works—gets a new copyright, which is vested in the author of the new work. To further complicate things, compilations and derivative works can stack. Collective works can themselves be compiled into collective works (and so on). A novel could spawn a play, which might be adapted to a movie. With each new layer, the law awards copyright in the new work to its respective author. 

As a relevant example, the recent Wicked movies are adapted from a stage musical, which is adapted from a book, which in turn is based on both a book and a movie. Each is independently copyrighted.  But it doesn’t stop there, because the original book had copyrightable illustrations, the second book also has copyrightable illustrations, and the musical and movies each contains multiple elements, including script, score, songs, and lyrics (and even scenery, costumes, and choreography), that might be independently copyrightable. The cast albums of each version of the musical (as well as the original movie) are also independently copyrightable. If your favourite pianist writes and plays cover arrangements from the musical, that creates more layers yet.

Layers, upon layers, upon layers. Turtles all the way down.

Copyright over compilations and derivative works creates potential problems in the interaction between the layers, so in addition to vesting copyright in the authors of compilations and derivative works, Section 103 also sets two important boundaries. First, it provides that compilations and derivative works are subject to copyright only when they have used the source material lawfully (i.e., without infringing copyright), and second, it provides that only new, original material is subject to independent copyright.

The second boundary, the requirement of originality, was arguably unnecessary—Section 102 already demands originality as a prerequisite. If, as Justice O’Connor famously observed, “the sine qua non of copyright is originality,” as Section 102 requires, then it should follow that only the original part of any given work is subject to a new copyright. But this was a source of frequent confusion, as the House Report noted, and so this was not a change over the previous law so much as a deliberate redundancy for the avoidance of doubt. Importantly, Section 103 makes clear that you cannot—and never could—extend a work’s copyright term, or gain copyright over a public domain work, by making minor changes to the work.

The first boundary is somewhat more complex. As we will see in Section 106, the Copyright Act gives the author—and only the author—the exclusive right to create derivative works. An unauthorized derivative work therefore is necessarily an infringement unless it is a fair use or otherwise permitted by the law. That would open the infringer to damages. But in Section 103, Congress took an extra step—it foreclosed copyright in the secondary work if the use of the source material was unauthorized. Why this extra step?

The House Report attributes Congress’s intention to preventing infringers from benefiting from their infringement. Copyright, after all, is all about encouraging authors to create works, but Congress didn’t want to encourage creation of new, copyrightable works at the expense of the rights of prior authors. For example, an unauthorized movie adaptation of a copyrighted book might make significantly more money than the cost of the infringement damages, so damages alone might not be sufficient to prevent that abuse. Section 103 provides a powerful disincentive—not only would the movie producers be liable for damages, they would also forfeit copyright in any parts of the movie that were derived from the source book.

This part of Section 103 hasn’t been fought over much in courts, but there is reason to think that might change. As Pamela Samuelson and Jessica Silbey have recently written, one issue to watch surrounds the fact that Section 103 grants copyright to compilations and derivative works only to the extent the use was lawfully made. But the Supreme Court’s ruling in Andy Warhol Foundation v. Goldsmith raises the possibility that this may cause problems for defendants in close cases, especially those that turn on fair use, because if the defendant made an infringing use in creating their derivative work, the defendant may risk actually losing copyright protection to their own original contributions to the work. 

We will certainly be watching how courts address this issue. We don’t think authors should forfeit copyright in their substantial original work, and we don’t think Congress intended that to be the case, either. Section 103 is one of a shrinking number of sections in the original Copyright Act that have been left unchanged since enactment. It will be interesting to see whether the courts create a need for Congress to clarify their intention.