If mounting works a “transformation,” then changing a painting’s frame or a photograph’s mat
equally produces a derivative work. Indeed, if Lee is right about the meaning of the definition’s
first sentence, then any alteration of a work, however slight, requires the author’s permission. We
asked at oral argument what would happen if a purchaser jotted a note on one of the note cards,
or used it as a coaster for a drink, or cut it in half, or if a collector applied his seal (as is common
in Japan). Lee’s counsel replied that such changes prepare derivative works, but that as a practical
matter artists would not file suit. A definition of derivative work that makes criminals out of art
collectors and tourists is jarring, despite Lee’s gracious offer not to commence civil litigation. ...No European version of droit moralgoes this far. Until recently, it was accepted wisdom that the
United States did not enforce any claim of moral rights; even bowdlerization of a work was
permitted, unless the modifications produced a new work so different that it infringed the
exclusive right under sec. 106(2).[The court noted that the Visual Artists Rights Act of 1990 (U.S.) “moves federal law
in the direction of moral rights” but the Act applied only to works that were unique
or part of a signed and numbered limited edition of not more than 200, and in any
event the sale of the tiles did not damage the plaintiff ’s honor or reputation. The court
concluded:]It would not be sound to use sec. 106(2) to provide artists with exclusive rights deliberately
omitted from the Visual Artists Rights Act.- PUBLIC PERFORMANCE RIGHT
Under Berne article 11(1), the authors have the exclusive right of authorising
“the public performance of their works .. by any means or process.”A performance may occur live or through mechanical means, e.g., by radio,
record player or television. The following definition in section 2 of the Canadian
Copyright Act is typical of the broad meaning of “performance” in international
copyright law:“performance” means any acoustic or visual representation of a work
... including a representation made by means of any mechanical
instrument, radio receiving set or television receiving set.Thus, in copyright law, the person who turns on the radio or television set to
hear a Chopin étudeplayed on the piano “performs” that piece in law, as much
as if he had himself sat down and played the piece live on his own piano.- A private performance does not infringe copyright
If I am in my house and play a copyright tune on my piano or turn on the
television or radio, the performance on the piano or what is perceived on the
television or radio is “in private”. It does not matter if my family or guests are
also there, or if I hire a band to play for me there: my house is my private
domain; my family and guests are part of that domain; so the performance is
not “public”. No infringement of copyright occurs in these cases:94