Blawg Review #150 is up at Trust Matters by Charlie Green, co-author of The Trusted Advisor and creator of the Carnival of Trust, which I will be hosting on the first Monday of May. This week's review links to the Blog's follow-up post about whether photographs of copyrighted Thomas & Friends toy trains are derivative works -- click here for the post.
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.
Schrock v. Learning Curve Int’l, Inc., No. 04 C 6927, Slip Op. (N.D. Ill. Jan. 29, 2008) (Shadur, J.).*
Judge Shadur granted defendants’ motion for summary judgment of non-infringement and dismissed plaintiff’s related state law claims. Plaintiff took a series of photographs of defendants’ Thomas & Friend toy trains, each pursuant to a provision that defendants could only use the photographs for two years. Plaintiff argued that defendants infringed plaintiff’s copyrights by using the photographs after the two years were up.
But the Court held that plaintiff had no copyright. The photographs were derivative works based upon defendant’s copyrighted Thomas & Friends train engines and cars. The party making a derivative work must have the copyright holder’s permission to copyright the derivative work. While plaintiff had the right to make the derivative works, plaintiff was not granted the right to copyright them. Plaintiff, therefore, had no copyright. And because plaintiff’s state law claims were based on supplemental jurisdiction, they were dismissed without prejudice.
The Court also noted that President Abraham Lincoln, a month before his assassination, signed the bill making photographs copyrightable for the first time.
* Click here for a copy of the opinion.
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