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10C new and derivative versions of a work in the public domain

Where to Look in the Law

1909 Act: §6
1947 Act: §7
1976 Act: §103(b)

“That compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works.”  (1909 Act, §6; almost verbatim: 1947 Act, §7.)

“The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”  (1976 Act, §103(b))

Copyright Office Publications for Laymen

See the section on Government Works for statements concerning the incorporation of U.S. Government work within a new work.

What the Courts Ruled


American Code Co. vs Bensinger et al

C.C.A.,N.Y. (6-23-1922) ¤ 282 F. 829.

In 1921, defendant Bensinger published A B C Code Fifth Edition improved.  On January 29, 1915, complainant American Code Co. had published the same work under the same title.  Both were reproducing a British book published as A B C Electric Telegraphic Code Fifth Edition.  Because this British work did not enjoy copyright protection in the United States, both American parties were entitled to publish American editions.  The only aspect on which the defendant was liable was that he had reproduced his American competitor’s edition by photolithographic process, including the Spanish heading on table, as well as specks and crooked layout.  The plaintiff had incorporated some new work, but as it was merely codes and such, these additions were not entitled to copyright protection.

“If one takes matter which lies in the public domain, or which has been dedicated to the public by publication without securing copyright under the acts of Congress, and, adding thereto materials which are the result of his own efforts, publishes the whole and takes out a copyright of the book, the copyright is not void because of the inclusion therein of the uncopyrightable matter, but is valid as to the new and original matter which has been incorporated therein. It is necessary, however, to keep in mind the distinction between copyrightability and the effect and extent of the copyright when obtained.  The degree of protection afforded by the copyright is measured by what is actually copyrightable in it; that is, by the degree and nature of the original work.”


Allegrini vs De Angelis

D.C.,E.D.Pa. (12-12-1944) ¤ 59 F.Supp. 248, affirmed 149 F.2d 815.

One publication (of religious designs) had entered the public domain by being published without copyright.  Someone else added material created by himself.  The copyright undertaken by him was valid insofar as his new and original matter.  The degree of copyright protection extended only to what he was entitled to copyright and not to the entire publication. 


Alva Studios, Inc. vs Robert Winninger, dba Wynn’s Warehouse, and Austin Productions, Inc

USDC SDNY (10-16-1959) ¤ 177 F.Supp. 265, 123 USPQ 487

Alva Studios obtained a certificate of registration of copyright on April 17, 1959, for its scale reproduction of Auguste Rodin’s “The Hand of God.”  The court recognized that it was “unquestionably based upon the Rodin sculpture,” yet the court also saw that the “plaintiff has sustained [the] burden” of entitlement to copyright in that he created his reproduction “by his own skill, labor and judgment without directly copying or evasively imitating the work of another.”  This was so because “great skill and originality is called for when one seeks to produce a scale reduction of a great work with exactitude.”  After going on to indicate differences in the rear of the base, the Judge states that the plaintiff was entitled to an injunction against those copying his work.  Although the original work was in the public domain (the plaintiff paid royalties for the access he received to the original), the defendants were guilty because they did not copy from “common sources,” which would have been permissible.

(EDITOR’S NOTE: One surmises the same verdict would not have been reached had a machine connected to a computer and laser-measure device had been programmed to chisel the reduction.)


Herman Axelbank vs George Rony, the Copley Press, Hallmark Productions, Kroger Babb, Fox West Coast Theaters Corp., National Broadcasting Company Inc., and Does One Through Twenty

USCA 9th Cir. (4-25-1960) ¤ 277 F.2d 314

Two collectors of film of the Russian Revolution each assembled from their own collections of public-domain newsfilm their own independent compilations.  Axelbank created one called Tsar to Lenin, a 70-minute feature copyrighted 1937.  Rony licensed his footage to Hallmark, which created Halfway to Hell, which was exhibited in theaters from 1953; Rony also licensed footage to NBC for a March 8, 1953, show, and to KCOP (an independent Los Angeles television station) for a weekly series called Background to Battle (1955).  Axelbank wrote to KCOP suggesting that Rony had pirated Tsar to Lenin, prompting KCOP to cancel Background to Battle.  Both collections were huge and both collectors had identical footage, yet no evidence indicated that Rony copied directly from Axelbank, nor did Rony copy the “new and original contribution of Axelbank” to his work: “the sequential development, the commentary…, and one map.”  Rony received a judgement as compensation for the cancelled television series and associated libel.


Cases Summarized in Other Sections

Maljack Productions, Inc., and Batjac Productions, Inc., vs UAV Corp. (launch this) decided that the pan-and-scan version of a widescreen movie was eligible for copyright as a derivative work.

Dr. Oliver Wendell Holmes vs George D. Hurst (launch this) was a Supreme Court decision which held that when a series of magazine articles went into the public domain, the fact that there remainded a copyright on the book which collected them did not prevent another publisher from combining the magazine articles into a competing book.




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