Copyrighting a collective work of fair use
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Posted by Ralph Slate on January 15, 2003 at 13:03:50:
I'm looking for discussion and thought on this issue, not for a legal opinion.
I'm curious as to whether there can be copyright protection for a collective work made up of items where the copyright is not owned by the creator of the collective work, but are used under fair use.
For example. let's say I write a book called "An Anthology of Comic Strips of the 20th Century". I spend 15 years travelling across the country, finding rare and obscure comic strips that were published in many local newspapers, all from 1900 to 2000. Most of these strips are copyrighted, and the copyright is still held by the original artists.
For the book, I include a single frame from a single strip of each of 5,000 different artists, to catalog the existence of each one of these strips, and to show examples of the artist's style.
I realize that the fair use may be tenuous here, since fair use is usually tenuous. I am basing the fair use on the fact that the category of the book is documentary, the book uses a very small portion of each of the original copyright owner's work, and does not compete with each of the original copyright owners in any way. The work is transformative since it is bringing together many examples of comic strips instead of collecting all strips of a single artist.
If someone else published "A More Definitive Anthology of 20th Century Comic Strips", and used 80% of the frames from my book by electronically copying it [easily evident both because of the selection of the exact frame and because of obvious imperfections in the original source that I reproduced], adding perhaps 20% more in additional frames that my book didn't have, with all new text, is this author infringing the copyright on my collective work?
Does the presence of the fair use material in my work mean that the entire body (or most of it) of fair use material can be copied from my work to someone else's work, in essence saving a tremendous amount of time and effort on the part of the second author?
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