Copyright infringement liability for a later work arises only if the later work embodies a substantial amount of protected expression taken from the earlier, underlying work. The later work must take enough protected expression (it does not matter how much unprotected material is taken, for the latter is open to the public) for the later work to be "substantially similar" to the earlier work.5
This issue arises, typically, in the context of the defendant purchasing a copy of a picture or some other work from the copyright owner or a licensee, and then modifying it. For example, pictures from greeting cards might be affixed to tiles or one kind of textile product might be turned into another that can be sold at a higher price. In Lee v. A.R.T. Co.6 (the Annie Lee case), when the defendant affixed the copyright owner’s copyright-protected note cards and small lithographs to tiles and then resold them, “the art was bonded to a slab of ceramic, but it was not changed in the process.” Therefore the defendant’s conduct did not give rise to copyright infringement liability. The court held that the defendant's tile-plus-card was too unoriginal to rise to the level of a derivative work, and therefore it could not be a derivative work at all, much less an infringing one.7
When the defendant's modification of the plaintiff's work is too insubstantial to "count," there is no infringing preparation of a derivative work. At the same time, the first sale doctrine permits the defendant to operate with immunity, although the affirmative defense is largely redundant in such cases. So long as there is no derivative work, there is no infringement—since no conduct that the Copyright Act forbids has occurred.
This issue arises, typically, in the context of the defendant purchasing a copy of a picture or some other work from the copyright owner or a licensee, and then modifying it. For example, pictures from greeting cards might be affixed to tiles or one kind of textile product might be turned into another that can be sold at a higher price. In Lee v. A.R.T. Co.6 (the Annie Lee case), when the defendant affixed the copyright owner’s copyright-protected note cards and small lithographs to tiles and then resold them, “the art was bonded to a slab of ceramic, but it was not changed in the process.” Therefore the defendant’s conduct did not give rise to copyright infringement liability. The court held that the defendant's tile-plus-card was too unoriginal to rise to the level of a derivative work, and therefore it could not be a derivative work at all, much less an infringing one.7
When the defendant's modification of the plaintiff's work is too insubstantial to "count," there is no infringing preparation of a derivative work. At the same time, the first sale doctrine permits the defendant to operate with immunity, although the affirmative defense is largely redundant in such cases. So long as there is no derivative work, there is no infringement—since no conduct that the Copyright Act forbids has occurred.
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