More on Toy Trains: Should Derivative Works be Registerable Without Permission
Schrock v. Learning Curve Int’l, Inc., No. 04 C 6927, __ F.Supp.2d __ (N.D. Ill. Jan. 29, 2008) (Shadur, J.).*
In February, I posted about Judge Shadur's opinion in this case holding that plaintiff's photographs of defendants' copyright Thomas & Friends toy trains were derivative works and, therefore, could not be registered with the Copyright Office without defendants' express permission -- click here for the post. Professor Rebecca Tushnet of my alma mater, the Georgetown University Law Center, at the 43(B)log has posted about the case also. Tushnet questions why the creator of an authorized derivative work should be prevented from registering that work:
What I don’t understand is why authority to register ought to matter. The derivative works – accepting for the moment that this is what they were – were made with the permission of the copyright owner in the original works. That is all that ought to be required. Of course there is a potential problem of blocking copyrights – but other cases have avoided this by finding no derivative work at all where a translation from two dimensions to three, or three to two, has taken place.
It does seem reasonable that the authorized creator of a derivative work should have the right to register the copyright, leaving any rights held by the underlying copyright owner to be controlled by contract. Of course, requiring that the right to register be expressly granted also leaves the rights to the contract between the parties, just with a different default.
