What are derivative works under copyright law?

Copyright protection is available for various types of creative works, including what are known as derivative works. A derivative work is based on a work that has already been copyrighted. The new work arises—or derives—from the previous work.

If you own the copyright to a work, you need to be aware that you also have rights to derivative works. If you're considering incorporating someone else's work into your new work, you need to be aware that you may be violating the copyright to the original work.

Copyright protection for original works

Copyright protection is available for various types of original creative works, including:

• Literary works, both fiction and non-fiction
• Sound recordings
• Musical works, including the musical score and lyrics
• Dramatic works, such as plays, including music
• Motion pictures, including those shown at movie theaters, on television (regardless of whether broadcast over-the-air, by cable, or by satellite), or over the internet
• Visual artworks, such as paintings, drawings, and sculptures

These are general categories to give you an idea of the types of works protected by copyright law. A particular work can fit into more than one category, depending on how it is expressed.

What are derivative works?

For an official legal definition of derivative works, the United States Copyright Act of 1976, 17 U.S.C. Section 101 states: A "derivative work" is 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."

However, there have been numerous court cases interpreting the law, which complicate things and render this definition incomplete. There must be major or substantial new material for a work to be considered copyrightable as a derivative work. The new material must be sufficiently original and creative to be copyrightable by itself.

Common examples of derivative works are:

• A new, updated, or revised, edition of a book
• A translation of a book into another language
• A sequel to a novel or motion picture
• A novel adapted to a screenplay, stage production, or motion picture
• A new musical arrangement of a composition

Copyright protection of derivative works

There are two ways that derivative rights are protected under copyright law.

First, the derivative work has protection under the copyright of the original work. Copyright protection for the owner of the original copyright extends to derivative works. This means that the copyright owner of the original work also owns the rights to derivative works. Therefore, the owner of the copyright to the original work may bring a copyright infringement lawsuit against someone who creates a derivative work without permission.

Second, the derivative work itself has copyright protection. The creator of the derivative work owns the copyright to the derivative work. This can either be the creator of the original work, or someone else who has obtained a derivative work license from the holder of the original copyright.

The copyright of a derivative work is separate from the copyright to the original work. Therefore, if the copyright holder gives someone a license to create a derivative work, the holder retains the copyright to the original work. In other words, only the derivative rights are being licensed.

Public domain works

Copyright protection doesn't last indefinitely—it expires after a certain length of time. If copyright protection to the original work has expired, that work is considered in the public domain. Anyone may use a work that's in the public domain.

If you take a work in the public domain and modify it somehow, the modified work is a derivative work that's entitled to copyright protection. Others may still use the original work in the public domain, but they may not use it with your modification.

Exceptions to copyright protection

Copyright doesn't protect against all use of the work or use of derivative works. There are a few exceptions that fall under what's commonly known as the fair use doctrine:

• Parodies. A parody is when a work is modified to criticize or make fun of the original work. Weird Al Yankovic has made a career out of writing and performing parodies of famous popular songs. Some painters have also taken paintings by famous artists and modified them in a humorous manner. It's important not to confuse parody and satire. A parody criticizes or makes fun of the original work itself, whereas satire uses the original to criticize or make fun of something else.
• Reviews. Someone writing a book review may quote small segments from the book being reviewed. Similarly, a review of a musical album may quote song titles and small segments of their lyrics.
• Scholarly works. The author of a scholarly work may use small portions of a copyrighted work.

It's not always easy to determine whether a work is a derivative work or whether it comes under the fair use doctrine. To be safe, it's best to obtain the original copyright holder's permission or seek professional legal advice.