Preventing Unjust Enrichment and Copyright Opportunism: Equitable Interpretations of Section 103(a)

A stealth issue in many close copyright fair use cases is the potential invalidity of second comers’ copyrights under 17 U.S.C. § 103(a) if the secondary use is ultimately held to infringe the derivative work right. Section 103(a) of the Copyright Act says, in effect, that no copyright exists in any part of a derivative work in which the first work’s expression was “used unlawfully.” Courts have largely ignored § 103(a). But recent cases, such as Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), have raised the profile of § 103(a). This Article traces the origins, history, and case law on § 103(a), highlighting its ambiguity and significant ramifications in cases in which it was arguably relevant. By exploring the expansive range of possible interpretations and applications of § 103(a), the Article argues that a careful reading of the statutory text, in keeping with its legislative history, reveals the dual purpose of § 103: to prevent infringers from being unjustly enriched when they take protected expression from earlier works and to provide protection to the original expression contributed by derivative work authors. When courts understand this dual purpose, they can and should limit the extent to which § 103(a) should invalidate copyrights, especially in close cases of derivative work infringement and fair use rulings. When invalidations of copyrights would be inequitable as to good faith secondary uses of source works, would result in windfalls to source work authors, or would otherwise be contrary to fundamental principles of copyright law, this Article argues that the best reading of § 103 would apply it narrowly to achieve copyright’s goal of promoting the “progress of science.”