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> This isn't a crazy outcome and it matches up well with traditional property laws. Yeah, but copyright is not a form of traditional property right. Intellectual "property" rights are better thought of as intellectual monopolies granted for a limited time, and this is important because intellectual works have some very different properties that separate them from physical property. For instance, in your examples, the lawn mower cannot easily "un-mow" the lawn nor the painters "un-paint" the house. Any attempt to do so would be labor intensive. However, in the OLGA copyright case, the publishers can trivially force the infringers to no longer publish the tabs, undoing any further damage. In the lawn mower and house painting case, the labor is fundamentally tied to the physical property being infringed. However, with intellectual property, this is explicitly not the case. The tabs do not alter the original song in any way, they are merely a derivative work. To be explicit, while the transferal of rights over the tabs to the copyright holders may be granted by a judge as part of reparation of harm done, I see no reason that the music publishers should presume to own the rights outright without the intervention of a court. For one final example as to why we should not conflate intellectual works and physical property, if I were to trespass onto your land and paint a beautiful painting of your landscape (with supplies I own) and then leave without causing damage, do you... own the painting? Just own the copyright? Own none of it? It is definitely not clear to me that you should automatically own my painting, even if I infringed your property rights by trespassing. |
If the tabs do not alter the original song in any way, then they are more like a literal copy than a derivative work. A literal copy, even one that took a long time to make, will not contain any separately copyrightable elements. A derivative work, however, may contain its own separately copyrightable elements, even if it was made without permission. For example, Fifty Shades of Grey started out as a Twilight fanfiction by E. L. James called Master of the Universe. James could not publish Master of the Universe without infringing the Twilight elements owned by Stephanie Meyer. But nor could Meyer publish Master of the Universe without infringing E. L. James's copyright in the elements that didn't come from Twilight.
> the transferal of rights over the tabs to the copyright holders may be granted by a judge
It is unlikely that a court would ever transfer title from an infringer to a copyright owner because (1) it's not necessary, and (2) in the case of a derivative work it may be unjust. To continue my prior example, if Stephanie Meyer had sued E. L. James for publishing Master of the Universe, it would have been unjust for a court to transfer title to her because the infringing derivative work contained copyrightable elements separate from those created by Stephanie Meyer. Usually a court will just order payment of damages (money), except where damages alone would be unjust. In the case of a settlement, however, the parties may agree to whatever terms they want.
Here, as I understand it, the tabs do not contain copyrightable elements separable from those owned by the composer. If a tab contained an adaptation of one instrument to a different instrument or an adaptation of several instruments to a solo instrument, then there may be some separate copyrightable elements in that adaptation. However, if the tabs are merely one-to-one transcriptions of the guitar part of the original composition, then once you take away the original composition there is nothing left that is separately copyrightable. If that is the case, then the tab creators have no rights, even though they spent time and effort in the transcription.
> if I were to trespass onto your land and paint a beautiful painting of your landscape
This example is easy to answer. I wouldn't own the painting because it was merely left on my property (technically, I would be called an involuntary bailee). I wouldn't own the copyright to the painting because I didn't paint it. If the landscape is natural, then I don't own any copyright in it because I didn't create it (in copyright terms, I'm not the author). The landscape might include something copyrightable, however, perhaps a sculpture that I created. In that case the painting may infringe on that copyright, but I would have to make the usual arguments (literal copying, substantial similarity, etc.) and you would make the usual defenses (fair use, etc.).