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Vanderbilt University Law School

Originality

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The Derivative Right, Or Why Copyright Law Protects Foxes Better Than Hedgehogs, Daniel J. Gervais Jan 2013

The Derivative Right, Or Why Copyright Law Protects Foxes Better Than Hedgehogs, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The derivative right is at the very core of copyright theory. What can and cannot be reused to create a new work impacts freedom of expression but also impacts the value of the markets for works and their various “derivatives.” The derivative right includes forms of derivation and adaptation, such as making a movie from a novel or translating a book. It also covers what this Article refers to as penumbral derivatives, which the US Copyright Act captures using the phrase “based upon” with respect to preexisting works. This leads to indeterminacy about the scope of the derivative right, which ...


Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge Jan 2009

Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge

Vanderbilt Law School Faculty Publications

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be "original," however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of "creative choices," which seems to have substantial normative heft in several jurisdictions, is optimal ...