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Gracen v. Bradford Exch. & MGM - 698 F.2d 300 (7th Cir. 1983)


The question of the copyrightability of a derivative work, a work based upon one or more preexisting works, such as an art reproduction or any other form in which a work may be recast, transformed, or adapted, usually arises in connection with something either made by the owner (or a licensee) of the copyright on the underlying work, or derived from an underlying work that is in the public domain. At issue in such a case is not the right to copy the underlying work but whether there is enough difference between the derivative and the underlying work to satisfy the statutory requirement of originality, and thus make the derivative work copyrightable. The copyright owner's bundle of exclusive rights includes the right to prepare derivative works based upon the copyrighted work. Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.


An artist painted a picture of Dorothy, a character from the movie "The Wizard of OZ," in which defendant MGM motion picture studio held a copyright, to be used by defendant china company on a series of collector's plates. However, the painter backed out of the deal, and defendants retained the paintings. Defendant painter eventually used plaintiff's painting as a model for the series. The artist filed action for copyright infringement against the studio. MGM, however, counterclaimed, alleging among other things that the painter had infringed the copyright on the movie by showing her drawings and a photograph of her painting to people whom she was soliciting for artistic commissions.The lower court found that the painter had infringed defendant's copyright by showing her painting to persons soliciting for artistic commissions and that plaintiff did not have a valid copyright in her drawing. The case was appealed.


Did the studio infringe the painter's copyright?




The court affirmed the judgment dismissing the complaint, vacated the judgment on the counterclaim, and remanded the case. The court agreed that plaintiff lacked a copyright because her work was derivative of the movie. However, plaintiff was promised the right to keep the painting. Therefore, defendants should have presumed that she might show it to advance her career. Plaintiff also presented evidence that drawings she created for defendants were hers to keep.

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