I know it’s Christmas Eve and probably the last thing anyone is thinking about is copyright law at the moment, but I can’t help it. I have copyright on my mind. I’ve just been re-reading the “Wind Done Gone” and “Harry Potter Lexicon” cases (great pre-Christmas reading!) and am having trouble getting my mind around why these works aren’t “derivative works” for copyright purposes, or at least why “The Wind Done Gone” isn’t a derivative work (as I understand it infringement of the derivative works right was not argued in that case). To the extent that there is a feeling that derivative works have to be in a different “medium” than the original, I can’t find support for that view in the section 101 definition of “derivative work”. I suppose I understand the argument from the Harry Potter case that a lexicon is not a “form in which a work may be recast, transformed or adapted” and that rather the lexicon is a guide or dictionary that assists with interpretation of the original work. But why isn’t a retelling of “Gone With the Wind” from a new character’s perspective a “recasting” or “transformation” of the original work? I’m sure I’m missing something obvious but I don’t seem to be able to put my finger on it right now. Must be too much Christmas spirit(s)!
I’m not sure the category of DW matters much any more as a type of infringement as opposed to a class of copyrightable works. Now that a nonliteral reproduction is thought to be a type reproduction, any infringing DW is just one that infringes by reproducing too much of the original, i.e., it’s not any different from an infringing reproduction. The distinction between the two might have mattered more when copyrightable material was limited to certain formats but the 1976 Act got rid of that.
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