Copyright, Derivative Works and Fixation: Is Galoob a Mirage, or Does the Form (GEN) of the Alleged Derivative Work Matter?

The Copyright Act gives a copyright owner the exclusive right to prepare derivative works based on the copyrighted work. Does the Copyright Act require that a derivative work be fixed in a tangible medium of expression in order to be infringing? Existing case law is contradictory, stating both that a derivative work does not need to be fixed but that it does need to be embodied in some concrete or permanent form. This contradiction stems from the fact that although the statutory language does not appear to require fixation, reading the statutory language literally would render illegal merely imagining a modified version of a copyrighted work. This contradiction can be eliminated by recognizing that what Congress intended was to prohibit the public performance of an unfixed derivative work, as well as the reproduction, public distribution, public performance or public display of a fixed derivative work. Congress\u27 intent can be fully implemented by holding that the exclusive right to prepare derivative works is dependent upon, rather than independent of, the other four exclusive rights. The advantage of this interpretation is that it leaves all private performances of a derivative work, whether fixed or unfixed, outside the realm of copyright infringement