David Nimmer on Jarvis v. K2 Inc.

David Nimmer on Jarvis v. K2 Inc.


Section 201(c) of the Copyright Act of 1976 allows later editions of collective works to be reissued. The U.S. Supreme Court interpreted § 201(c) in 2001, and the Ninth Circuit returned to the provision in Jarvis v. K2 Inc. At issue in Jarvis were photos that Jarvis took under contract to K2, which made the photos into collage advertisements. After the contractual term between the parties ended, K2 ported those collages to its website, claiming that § 201(c) shielded its conduct. The district court agreed, and the Ninth Circuit reversed. David Nimmer discusses the analysis that the Ninth Circuit should have followed, and places the holding within the law’s larger framework. He writes:
 
[T]he [Ninth Circuit] concluded that the collages constituted derivative works. Standing by itself, that determination is correct. After all, Jarvis’ original photographs endured many transformations before emerging in collage form. Yet … the Ninth Circuit went much further, concluding that the ads could not qualify as collective works: “The ads did not simply compile or collect Jarvis’ images, but rather altered them in various ways and fused them with other images and artistic elements into new works that were based on—i.e., derivative of—Jarvis’ original images.” That conclusion follows only on the basis of a hidden fallacy: the supposition that any given work can be either a derivative work or a collective work (or perhaps neither). Unimagined by this opinion, a given work can, in fact, be both.
 
     ….
 
     … The opinion … recite[s], “Counsel for K2 also emphasized during oral argument that the collage ads that appeared on K2’s website were identical to the original magazine inserts.” Yet the panel rejected that protestation as “irrelevant to our inquiry into the ads’ nature” with the observation, “A derivative work remains derivative when it is scanned and placed online, just as a collective work would remain collective if it were transferred from one medium to another.”
 
     In fact, counsel’s emphasis was well placed. The collages were created during the course of the parties’ contract, with Jarvis’ consent. If they were collective works at that juncture, then (under the court’s own logic) they remained so even when “transferred from one medium to another” by being loaded onto K2’s website. Such a finding should seal the applicability of the Section 201(c) privilege. (citations omitted.)
 
Mr. Nimmer concludes by asserting that:
 
     In short, the court’s holding “that the four collage ads were all derivative rather than collective works” requires re-examination. Instead of assuming that the collages’ status as derivative works ipso facto disentitles them to the status of collective works, that investigation must proceed on its own merits. If, as seems likely, those collages actually comprised “a number of contributions, constituting separate and independent works in themselves,” then the Section 201(c) privilege should be deemed to apply to them.