Derivative Work = Who Owns What

Especially if the derivative starts with a digital version of the original, it’s not likely that the derivative would be considered a new work.

The creator of the new portions owns the new portions, the owner of the copyright to the original owns the original.

This is an interesting conversation. My approach is not from legal but more likely ethics.

I am personally a hybrid Kantian/Virtue foundation as it relates to the value of decisions – however most professionals (CPAs in particular) are a hybrid of Kantian/Utilitarian where as I believe most people are hybrid utilitarian/kantian – all this means is that this is complex and contextual at best and completely prone to abuse of discretion and power.

The traditional Utilitarian, of course, would view the derivative or changed work in terms of if the pleasures of the many (viewers, users, participants) would increase their life quality relative to the loss sustained by the (claimed) originator (we will ignore the aspects associated of copies that survive as originals due to legal maneuvering, luck, theft, or deceit. So under the Bentham methodology of decision making the determination would be only based upon the net benefit to society – and since it is likely that more would benefit relative to the cost of the claimant, there would be no justification to stop the conceptually derivative work.

Kant – on the other hand – being a Deontologist, (one should due his duty) would seek to confirm the following: Does the action have universal applicability? Meaning would we, in all circumstances, believe it is appropriate to claim benefits from modifying the work of others without compensation? Who defines a derivative work? What is original? These are in part legal questions which is why cases have different results. Non-standard facts and definitions. Under Kant, if any derivative work fails to be allowable as independent of the original, then all derivatives fail. We can ignore Kant’s 2nd and 3rd standards (always treating people as ends and never as a means – where as in this case using one’s work as a means to an end, would seem to fail this plank); and finally – we haven’t analyzed whether the applicability is consistent between those in power (big companies, governments, power holders) and small participants (users, independents, etc.) Based upon Kant’s first plank – it would seem to be that using the work of others without permission and/or allowable compensation – would be an unethical abuse and not allowed.

So – if we start with Bentham and the overall benefit of society (Utilitarian) with a Kantian inside – we can find when people deem one use acceptable and another not. That is why jury’s will come up with different answers. If we flip that question around and start with Kant – with a Utilitarian inside – it is likely that our duty to protect the property rights of others is more important (why I like patent trolls – it is all about securing and protecting property rights and who better but a bunch of blood sucking vampire personalties that are well funded to control the abuse by nameless larger corporations (like Google, MS, Apple, Intel, etc.) (Ok – so I am a closet Lib) {ertarian that is}

Now – moving along our methodology – we could approach like the Greeks – and ask about the virtue of the derivative work? Meaning did the subsequent artists mean to abuse the work of others? Was there an intent? Should intent matter? Inadvertent or unknowing derivations would be without malice and would like retain their virtue and therefore there would be no foul. If, on the other hand, there was intent (e.g. Plagiarism) – there would be harm and hence accountability.

We could look at the question from a relativist perspective which would essentially determine that one could not form a judgement since we weren’t party to the act and hence wouldn’t know how to define its correctness (of course this is poppycock)

Social Justice would argue from the perspective from an ends perspective – what is the result that should be achieved? According to a SJ theory – one would survive the challenge if the the right result were achieved – for example – a free copy of the Mona Lisa if displayed in the public square would be likely allowable as public art is a good use where as a copy in my home would be a private use without any social redeeming value.

Ultimately – I am of the camp that supports the position that large enterprises have crafted copyright and patent benefits in excess of their original intent – (original intent is circa 1788-89) that after some level of time – the IP should become public domain (75 years + author’s life is not a reasonable period of time) – that at some level all work is derivative of some other work (somewhere somehow – but the arrangements are different so as to create new again) –

Van Gough borrowed from previous artists – he and Gauguin spent summers painting the same scenes with the same model but with different results – yet Van Gough was almost always finished in hours and Gauguin in months – did Gauguin borrow from Van Gough? Was one a derivative of the other? They were similar yet different? What about the previous paintings of women or stars or moons? When does creativity begin and end? A complex question with infinite answers.

Just my rambling thoughts via Wifi on a Plane.

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