C. Authorization and Derivative Works
To be copyrightable, a derivative work must not be infringing. See 17 U.S.C. § 103(a); see also Pickett, 207 F.3d at 405-06; Gracen, 698 F.2d at 302. The owner of the copyright in the underlying work has the exclusive right to “prepare derivative works based upon the copyrighted work,” 17 U.S.C. § 106(2), and “it is a copyright infringement to make or sell a derivative work without a license from the owner of the copyright on the work from which the derivative work is derived,” Bucklew, 329 F.3d at 930. This means the author of a derivative work must have permission to make the work from the owner of the copyright in the underlying work; Gracen suggested, however, that the author of a derivative work must also have permission to copyright it. 698 F.2d at 303-04 (“[T]he question is not whether Miss Gracen was licensed to make a derivative work but whether she was also licensed to exhibit [her] painting and to copyright it. . . . Even if [Gracen] was authorized to exhibit her derivative works, she may not have been authorized to copyright them.”). The district court relied on this language from Gracen to conclude that Schrock has no copyright in his photos because he was not authorized by Learning Curve to copyright them. This was error.
First, Gracen’s language presupposing a permission-to-copyright requirement was dicta; the case was actually decided on nonoriginality grounds. Id. at 305. More importantly, the dicta was mistaken; there is nothing in the Copyright Act requiring the author of a derivative
