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Another question is how to handle translations into new lan- guages or new media. The Copyright Act grants owners the exclusive right to prepare not only literal reproductions but also “derivative

310 _{See UNIF. TRADE SECRETS ACT§ 1(4)(i) (UNIF. LAW COMM’N 1985) (limiting trade}

secret protection to information that “derives independent economic value, actual or potential, from not being generally known” and “not being readily ascertainable”).

311 _{See supra note 196 and accompanying text (noting how each piece of art is a}

performance by an artist that audiences enjoy).

312 _{Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 614 (2d Cir. 2006)}

(quoting Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 930 (2d Cir. 1994)).

313 _{See 17 U.S.C. § 115 (2012); supra text accompanying notes 123–28 (discussing}

compulsory licenses). Because composers in some genres tend to rely on other artists to record their work (e.g., country songwriters and classical composers) while in other genres they tend to record it themselves (e.g., singer/songwriters and rock bands), the economic impact would not be uniform. Those composers whose business depends on licensing others to record their work would, like the playwrights discussed in the preceding paragraph, have a strong argument against permitting unauthorized recreations.

works,”314 _{a category that expressly includes translations, dramatiza-}

tions, and motion picture versions.315 _{Yet these works seem to carry}

all the benefits of recreations as I have defined them here. Translating well, whether from English to German or from novel to cinema, is extremely difficult. It also cultivates great skill.316 _{Why then shouldn’t}

it be allowed? Or, put differently, why don’t the exceptions that I’ve advanced in this Article swallow the derivative work right whole?

Part of the answer may simply be that, even taking into account recreations’ value, the benefits of allowing authors to control deriva- tive works still outweigh the benefits of letting anyone make them. The derivative work right can incentivize original creation,317 _permit

authors to craft sequels and spinoffs without needing to rush them to market,318 _{and push downstream users to make more creative use of}

existing cultural materials.319 _{But each of those justifications is}

strongest when applied to the markets that the creator of the original work can reasonably expect to reach.320 _{To the extent that recreating a}

work is beyond those reasonable expectations, there’s less reason to

314 _{Id. § 106(2).}

315 _{See id. § 101. The definition also includes “art reproduction[s],” id., which might at}

first suggest that Congress specifically foreclosed a use that I’ve offered here as a paradigmatic recreation when done from scratch. That reading of the statute, however, would be too broad. The word “reproduce,” which the statute does not define, is the operative verb in the provision granting the owner the basic right to make copies. See id. § 106(1). There’s no good reason to read “art reproduction” as any more impervious to fair use considerations than the reproductions of any other work. Thus, in analyzing fair use arguments, the statute leaves courts as free to distinguish between the copy processes of “art” as of any other kind of work.

316 _{Indeed, early case law allowed unlicensed translations because of the intellectual}

labor involved. See Stowe v. Thomas, 23 F. Cas. 201, 207 (C.C.E.D. Pa. 1853) (No. 13,514) (“To make a good translation of a work often requires more learning, talent and judgment, than was required to write the original. Many can transfer from one language to another, but few can translate.”). That rule lasted until 1870, when Congress amended the copyright statute to give owners the ability to control translations. See Copyright Act of 1870, ch. 230, § 86, 16 Stat. 198, 212.

317 _{See Pamela Samuelson, The Quest for a Sound Conception of Copyright’s Derivative}

Work Right, 101 GEO. L.J. 1505, 1528–30 (2013) (describing certain classes of authors for

whom “derivative markets factor into decisions about whether to create new works and what kinds of works to create”).

318 _{See id. at 1530–31.}

319 _{See Michael Abramowicz, A Theory of Copyright’s Derivative Right and Related}

Doctrines, 90 MINN. L. REV. 317 (2005) (arguing that without a derivative work right,

authors may invest in inefficiently similar adaptations); Joseph P. Fishman, Creating

Around Copyright, 128 HARV. L. REV. 1333 (2015) (arguing that the derivative work right

may generate creativity by constraining authors’ use of familiar expressive solutions).

320 _{See Samuelson, supra note 317, at 1521 (noting that a common denominator of}

derivative works is that they are all “aimed at clearly foreseeable markets to the works on which the derivatives are based”).

label it infringement.321 _{Developing a novel into a movie, for example,}

is well within the heartland of uses that many novelists anticipate.322

Recreating the same movie from scratch isn’t. There will also be cer- tain transformations between media that are similarly remote, like a three-dimensional restaging of a photographed scene.323 _{Though the}

derivative work right covers widely foreseeable kinds of translation, it shouldn’t include such distant activity.

Moreover, audiences’ process preferences are probably weaker for the average derivative work than for the average close copy. Recall that audiences often value recreations precisely because they are the work of someone other than the original author.324 _{Seeing a}

second comer skillfully replicate an author’s creation tends to be more rewarding than seeing the author do the same thing twice. That’s not necessarily the case with derivative works. An audience may value a work recast in a new medium regardless of whether the original author is the one doing the recasting. The justification for allowing recreations is thus somewhat stronger for close copies.