Mark,
Thank you for you response, and may I say that far from viewing this exchange as an argument, I consider it more a healthy debate - to which I have no copyright on being correct. [/light-hearted quip]
To answer your query
Now I've only been speaking English for a few decades so I may be unclear on the meaning of the word "when," but I've always taken it in this context to denote a condition. In this case a condition with two parts: "modifications are executed as a 'service' " & "there is 'consideration' "
Further, when these conditions are met, "there is no new derivative work."
You've done it again, omitted the part '… but rather work that contributes to the original'.
Continuing ..
'Consideration' is evidence of a contractual relationship. (I think on that we agree). In the US the first test is indeed as you say - whether or not the work is 'an original work'. Whether or not that confers a copyright though, is also governed by the contractual agreement between the two parties. Where there is no stipulation, (unlikely in our modern age) and were there to be a dispute, the decision could be referred to judicial interpretation.
In my first analogy, that of an author, I'm told, under advice, that it would be reasonable to consider these contributions (effected under a contractual arrangement and barring any specific concessions as to copyright) as 'contributions to an original work of authorship' #24(a) – not an original work in and of itself. The seminal point here is whether or not a contract or T&C existed or could be inferred.
Were the work in itself to be freelance or commissioned - #24(c) , then the opposite would apply. The copyright, barring any specific concessions, would belong to the author of the work.
Your assertion, as I understand it, is that all that matters is whether or not the work is an original work. I'm saying yes, but
not necessarily, when a contract can and often does clearly stipulate the basis on which the work is undertaken.
In practical terms, Heather Thomas – author of several exceptional books, published by Pavilion and sold by
Amazon US and
Amazon UK, Barnes & Noble, Harper Collins-(Aus), Waterstones, The Guardian amongst others ( Schewe, if you're reading this in copy – check them out , this 'gal knows her stuff and it'll do your health no end of good) recently published her latest work.
Contributors to 'an original work of authorship' were home economists, stylists, photographers, editors, proof readers, designers, art directors and a repro house. None of them hold a copyright – derivative or otherwise. The copyright is exclusive to Heather Thomas (the text) and Pavilion ( the design layout, photographs and cover art). I'll repeat that , Pavilion hold the copyright to the photography both in the UK, EU … and in the USA! … and no, they didn't take the photographs.
So, I put it to you again, can you cite a recent case where a court has ruled that a bureau having performed 'photoshop services' on a still image - services that resulted in an 'original work' – retained a copyright on the derivative irrespective of the parties contractual tie-up ?