I ask because Canada and the EU's top courts have come to different conclusions. In Allposters, C‑419/13, the CJEU ruled that though the adaptation/derivative right was not harmonized within the EU, the ink transfer could be considered a reproduction and thus a copyright infringement. Conversely, in Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC 34, the Supreme Court of Canada ruled that reproduction required multiplication ie. additional copies must be produced. Additionally, Canada's adaptation/derivative rights aren't as expansive as the US and also require multiplication, therefore there is no copyright infringement.

I understand that the US derivative rights is generally wider, but is it wide enough to encompass the ink transfer from poster to canvas? Additionally, does the US require multiplication for reproduction? The relevant portion of the statute isn't entirely clear to me (17 USC 106):

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

My case-law searching fails me for the multiplication question, but for the derivative question I've found a similar fact pattern. Albuquerque A.R.T. Co. operated a business model where they would take printed artwork and fix it to ceramic tile (no ink transfer, but there's no multiplication either in this case). Unfortunately, this has resulted in a circuit-split which I believe is still unresolved, with the Ninth first ruling this an infringing derivative in Mirage Editions, Inc. v. Albuquerque A.R.T. Co. and the Seventh explicitly disagreeing in Lee v. A.R.T., ruling it not to be a derivative.

This makes it incredibly likely that the Ninth Circuit would see ink transfer from poster to canvas as an infringement. However, it's not so clear outside the Ninth. Since ink transfer is a bit more of a transformative process than merely mounting existing work onto a new medium, maybe that brings it within the scope of being a derivative work nationwide?


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