Have you ever thought about using part of an existing picture or story to create something new? If so, brace yourself for a potential ringside court session with the original author and the court. That's because your "new" project may in fact be a derivative work.
Copyright law protects original, creative works of authorship such as books, manuscripts, music, film and video productions, computer code and works of art such as paintings and photos—among other things. Authors of these works have exclusive rights to do the following with their work:
- Reproduce the work
- Distribute copies of the work to the public
- Perform the work publicly
- Display the copyrighted work publicly
- Prepare derivative works based upon the work
So What Is a Derivative Work?
A derivative work is a new, original product that includes aspects of a preexisting, already copyrighted work. Also known as a "new version," derivative works can include musical arrangements, motion pictures, art reproductions, sound recordings or translations. They can also include dramatizations and fictionalizations, such as a movie based on a play.
Other examples of derivative works include:
- Translating an English novel into Spanish
- Remixing previously released music
- Creating a sequel to a film using characters and other elements from the original
Who Can Produce Derivative Works?
Only copyright owners have the exclusive right to produce derivative works based on their original, copyrighted works. Copyright on original works of authorship is automatic, and registration—while it does carry significant benefits, like the right to sue for infringement—is not required for a work to be protected; protection attaches immediately when the work is completed. However, a copyright owner can grant permission to someone else to make a derivative work based on his or her original—if permission is granted (in the form of a license or assignment), then creation of the derivative work is not infringement. But if the original isn't yours and you don't get permission to use the original from its creator, then you're infringing that author's copyright.
The Exception: "Fair Use"
So you've been inspired by someone else's work to make one of your own, and you've used some of that original. That means you've infringed the original author's copyright, right? Well, not necessarily. There exists a carve-out to infringement that applies with particular force to the derivative works arena: the “fair use” doctrine. This is a defense available to someone who uses another's work—without permission—in the creation of his or her own. A good example of fair use are works of scholarship that incorporate portions of a copyrighted piece—but only so much as is absolutely necessary to whatever point is being made through its use. Similarly, book reviews are allowed a certain latitude—it's nearly impossible to review a book well without including any of its language. And another well-accepted category of fair use is parody: works that use copyrighted (for purposes of this conversation) works to make fun of, criticize or otherwise comment on those original works: 2 Live Crew's use of Roy Orbison's “Oh, Pretty Woman” is the best-known example of parodic fair use.
But fair use is slippery. There are four factors for courts to weigh when a defendant accused of infringement claims the fair use defense, and this four-factor balancing test leads to subjective, unpredictable results. Although you may think your use is fair, you may find out that the court thinks otherwise. If you miscalculate, you'll join a long list of artists who have—or who have just thought that no one would notice their appropriation—and who have paid dearly for their mistake.
Wait—What if the Work I'm Deriving From is My Own?
As the copyright holder of an original work of authorship, you have the exclusive right to create derivative works based on that original. Your work? You're fine. In order for your derivative work work to receive its own copyright, it must be different enough from the original to qualify as a new piece of work. Simply making minor changes to an original, copyrighted work does not constitute a new derivative work under copyright law. (And, to pre-empt a half-clever question: no, that does not mean that you can make minor changes to someone else's work and claim that you haven't infringed the original because you haven't created a derivative work—you've just copied it.)
What Copyright Protection is There for Derivative Works?
The copyright on a derivative work covers only new material, appearing for the first time in the derivative work; it does not cover any preexisting material from the original. So the character of Superman is not covered by the copyright on the film Superman, since the copyright on that character pre-dated the movie; but any elements new to the film received their copyright from the date of Superman II's creation. What this means are two things: (1) if you license a work from its author so you can make a derivative work based on the original, you do not obtain the copyright on the original—you gain only the right to make the derivative work agreed upon; the owner retains all rights to the original and all its elements, and (2) the copyright on the original is not extended by the creation of the derivative work. This used to mean more than it does today, since copyrights exist for the life of an author plus 70 years, and if an author makes a derivative of his own work, then his copyright won't change regardless. But what it does mean is that if a second author makes a derivative work of the first author's original, the copyright on the elements of the original is measured by the life of the original's author—not the derivative work's.
With “new versions” of work becoming more commonplace, the lines between a new creation, a derivative work and copied work can be blurred. With all these gray areas, it's important to do your homework before you set out to create and publicize something you believe is completely black and white. The take-away: get a license or get a lawyer.
This article was originally published in August 2006 and updated in November 2011.
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