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Comment by JangoSteve | Hacker News Reader

I thought you were going to point out this line:

> Lester Freundlich, an attorney for the MTA, told Berman in an email Wednesday that his subway map was “clearly a derivative work of MTA’s current version of the Vignelli subway map.”

The MTA's attorney literally calls his map a "derivative work" which is something that's protected by Fair Use. When I read that in the article, I immediately thought that the artist's response should have been, "Thanks for clarifying that it's clearly a derivative work; so you'll drop the claim now?"

EDIT: For anyone reading this without additional context, I should clarify, derivative works are protected as long as they're transformative, which this seems pretty clearly enough so to count. So, it's less a point that being a derivative work itself means it's protected, than the point that being a derivative work doesn't mean it's not protected like the MTA's attorney seemed to imply.

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Depends on how derivative and how transformative and, since Fair Use is a affirmative defense for which merit is decided subjectively, doesn't really matter until you're in court. Fair Use isn't protected, per se, more that it's an exception to copyright being protected if you can convince the judge.

That said, I wouldn't even call what I was looking at derivative. I can barely match the transit lines up for most of it, and the styling is completely different. It goes beyond transformative to just being a unique artistic rendering of the same base system. That's the phone book scenario the article raises to a T.

I agree with almost everything you said. Fair Use is definitely protected though, as it's a core component of the US copyright law that helped shape the rest of the law, not an exception or amendment that was added later. Copyright basically couldn't exist as we know it without Fair Use. However, it is definitely subjective and always evaluated on a case-by-case basis, though there are often precedents set which help you understand the likely judgements of Fair Use before you're in court.

I was definitely being imprecise with my wording though, as I was thinking about a _transformative_ work when I read their attorney say "derivative" work, where a transformative work is a type of derivative work that is protected by [subjective] Fair Use.

I also agree with you though that I wouldn't even necessarily consider this a transformative work of the other map, as that assumes he started with the other map. But just starting with the same facts, which aren't copyrightable, and following standard cartographic conventions while exercising the author's own artistic expression into the final rendition would just be a separate work entirely.

Sounds like we're really in full agreement, some semantics aside, and I think probably more people align with your semantics than mine. Thanks for the clarifications!

Uh, No. Derivative works must be transformative in order to qualify for their own copyright. But simply being transformative doesn't give the owner of the new work rights to do anything with it.

Ex: I write and produce a new SW film, and attempt to sell it without a license from Disney. I'm going to get sued into oblivion, because their copyright still applies, in terms of setting up the setting and characters.

Fair use can apply with derivative works (ex: I make a parody version of Star Wars, such as "Troops"), in which case you may succeed in being able to do stuff with your new SW parody, but you're likely to have to pay a bunch of lawyers a lot of money first if they don't like it. But being derivative doesn't guarantee it's Fair Use.

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