Horgan v. Macmillan, Inc., 789 F.2d 157 (1986) p.517

SUBJECT

derivative works

FACTS

Possible copy of a ballet. Defendant is the publisher, and photographer. He puts the pictures on pages in a book.

PROCEDURE

Trial court said the pictures in the book were not a derivative work. The court dewa an analogy to the inability to recreate a Beethoven symphony from a document containing only every twenty fifth chord of the symphony.

ISSUE

Whether pictures of the Ballet in a book were a derivative work.

RULE

The test is whether the ordinary observer, unless he set out to detec the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.

HOLDING

The pictures constitute a copyright violation.

RATIONAL

The Beethoven analogy was wrong. The district court judge took far too limited view of the exten to which a choreographic material may be conveyed in the medium of still photography. Much more (qualitatively) can be shown in a picture than in a musical chord. The single instant thus communicates far more than a single chord of a Beethoven symphony.

NOTES

Pictures can vary in their copyright infringement. A picture of an actor coming in from the wings might not be recognizable as the Nutcracker, whereas a picture of center stage could easily be recognized as such. There needs to be a distinction between qualitatively and quantitatively. Many pictures of actors in the wings might not be a violation, while one quality picture of the action might.

Created on: Thursday, October 07, 1999 at 18:41:28 (PDT)