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If a person infringes on someone's copyright by making a derivative work (like fanart for example), who owns that work? I'm aware the copyright holder can stop the work from being distributed and take it down, as well as claim damages that the derived work may have caused.

This question comes from a recent controversy where Disney started selling a toy made from a 3d model that they took from a fan work made by an internet user. The 3d model seems to be clear copyright infringement as the fan didn't obtain permission and the object depicted in the model was copyrighted by Disney. They could have made him take it down and/or get paid for damages, but It's not clear to me if they can just use the work as if it was a derived work made by them.

Is Disney in the right here? Does the ownership of the original work grant them ownership over these infringing derived works? If not, does the fan have a case here or does the initial infringement invalidate any claim he may have?

Sorry if this has been asked before, I looked for this question but didn't find anything close enough.

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To my understanding, the answer is in theory no, in practice yes.

Ordinarily, non-infringing derivatives gain copyright on the creative elements contributed by that derivative's author (17 USC 103(b)). However, as I cover here, the United States has a specific statutory provision in 17 U.S.C 103(a) which bars infringing derivatives from gaining copyright (internationally, most statutes are silent on this specific scenario).

So in theory, Disney does not own copyright on the derivative because no one does - no copyright was assigned to the derivative author due to its infringing nature and the elements original to that derivative are technically in the public domain (unless they are far enough removed from the original, per the wording of s. 103(a)).

However, in practice Disney effectively owns the copyright. By definition of being a derivative, it contains original elements of another author's work. Disney is the rightsholder of that author's work and as such can effectively exercise the rights granted to it by copyright law on the derivative by virtue of holding the underlying original's copyright.

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  • How does this answer square with the quote from Berne convention in another answer “arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work" Feb 23 at 20:21
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    @GeorgeWhite My linked answer goes into greater detail about the ambiguity of the Berne Convention in this respect. However, for the purposes of this question specifically tagged for US law, the Berne Convention is generally not determinative, as the US explicitly places domestic copyright law above the Convention as per 17 USC 104(c).
    – DPenner1
    Feb 23 at 20:28
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Copyright law does not contain a "teaspoon of sewage" rule whereby one loses their copyright if one has infringed copyright. I own my works, which is stuff that I created, and you own your works (analogous definition), and I do not own your work just because it includes some of my work. For example, the Berne Convention says "Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work". Theoretically, the infringer could sue Disney for copying his work without permission (if that is what happened – as opposed to giving permission to use in exchange for not getting sued for the original infringement).

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