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14 Tul. J. Tech. & Intell. Prop. 261 (2011)
Smile and Say, "We Need Not Decide": Decoding the Federal Courts' Nonanswers Regarding the Derivative-Work Status of Photographs

handle is hein.journals/tuljtip14 and id is 263 raw text is: COMMENTS Smile and Say, We Need Not Decide: Decoding the Federal Courts' Nonanswers Regarding the Derivative-Work Status of Photographs Jordan Parker* I. INTRO D UCTION ................................................................................. 26 1 II. HISTORY OF PHOTOGRAPHS AND COPYRIGHT ................................. 263 A . B ackground ...................................................................... 263 B. What's in a CopyrightAnyway? ...................................... 265 III. DERIVATIVE WORKS AND THE COPYRIGHT ACT ............................. 268 IV. PHOTOGRAPHS AND THE DEBATE OVER DERIVATIVE-WORK P RO TECTIO N ..................................................................................... 270 A. How Have the Courts Managed To A void Resolving This Issue? ......................... ...... 270 B. Case Law Sympathetic Towards (but Without Deciding) Derivative- Work Protection for Photograp hs ...................................................................... 271 C Case Law Leaning Against (but Without Deciding) Derivative- Work Protection for Photographs .................. 274 V. LEGAL AND EQUITABLE CONSIDERATIONS ..................................... 278 V I. C ONCLUSION .................................................................................... 281 I. INTRODUCTION Copyright serves the dual purpose ofassur[ing] authors the right to their original expression, [while] encourag[ing] others to build freely upon the ideas and information conveyed by a work.' Accordingly, copyright protection extends not only to novel works, but also to * © 2011 Jordan Parker. J.D. candidate 2012, Tulane University Law School; B.A. 2007, University of California, Los Angeles (UCLA). The author would like to thank his parents for making all of his opportunities possible and his extended family of lawyers: thanks to his lawyer brother David for all of his encouragement through the long duration of law school, his lawyer Aunt Debbie for all of her support, and thanks to copyright aficionado Uncle Neil for inspiring him to pursue intellectual property. He would also like to thank the members of the Tulane Journal of Technology and Intellectual Property for all of their hard work and dedication. I. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991). 261