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 (b) Validity

Defendants next attack the validity of plaintiff’s copyrights. I consider first their contention that the Alpha Micro programs constitute unauthorized derivative works.

The Copyright Act defines “derivative work” as: "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”."

17 U.S.C. § 101.

The author of a derivative work is entitled to copyright protection for the material that author contributes. Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 33–34 (2d Cir.1982); 17 U.S.C. § 103. To qualify for protection, the derivative work must contain “ ‘some substantial, not trivial, originality.’ ” Eden Toys, 697 F.2d at 34 (quoting L. Batlin & Sons, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.) (en banc), cert. denied, 429 U.S. 857 (1976)). However, copyright protection does not extend to any part of the derivative work in which pre-existing material was used unlawfully—for example, if the copyrighted portions of the pre-existing work were used without the owner’s permission. Id. at 34 n. 6; 17 U.S.C. § 103(a). And, if the pre-existing material used without permission “tends to pervade the entire derivative work,” copyright protection is denied to the derivative work entirely. 1 Nimmer, Nimmer on Copyright, § 306, at 3–22.2 (1985); see Eden Toys, supra, 697 F.2d at 34 n. 6.

Plaintiffs concede, for the purposes of this motion, that the Alpha Micro programs are derivative works based on pre-existing works it sold to Censor. Defendants do not seriously argue that the programs are not sufficiently original to qualify as derivative works, and I find plaintiff’s contribution to them at least “substantial.” However, defendants contend that plaintiff’s use of Censor’s pre-existing materials was unauthorized.

This contention is meritless. It is not clear when Censor became aware that DSI was creating the Alpha Micro programs, but it is clear that he welcomed them. If he learned of their creation during the course of the project or before it began, his authorization was implicit in his acceptance of the plan. If he learned of their creation only when they were completely finished, which appears inconsistent with his deposition testimony (Dep. 356), he clearly ratified DSI’s conduct by his own acceptance and profitable use of the products. See Eden Toys, supra, 697 F.2d at 34 n. 6. His belated cry of “foul” can only be described as an afterthought.