Derivative work

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This article or section deals primarily with North America and does not represent a worldwide view of the subject.
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This montage of different images is an example of a derivative work

In copyright law, a derivative work is an expressive creation that includes major, basic copyrighted aspects of an original, previously created first work.

Derivative being something that primarily refers to anything derived from a source — not primitive or original.

1 United States Law
2 Canadian Law
3 Example
4 Software
5 See also
6 References
7 External links

United States Law

Definition

In the United States, "derivative work" is defined in 17 U.S.C. § 101:

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”.

US Copyright Office Circular 14: Derivative Works notes that:

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

Derivative work right

The owner of a copyright has the exclusive right to prepare derivative works based on that copyrighted item under 17 U.S.C. § 106(2). US Copyright Office Circular 14: Derivative Works further states that:

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

Thus, one who creates an unauthorized derivative work violates the derivative work right.

As copyrightable subject matter

17 U.S.C. § 103(a) provides that derivative works are copyrightable subject matter. 17 U.S.C. § 103(b), however, indicates that

The copyright in a . . . derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.

Unauthorized copying of a derivative work is a violation of 17 U.S.C. § 106(1).

Effect on duration of copyright protection

When a derivative work is copyrighted, 17 U.S.C. § 103(b) dictates that,

[t]he copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Thus, registering a derivative work will not artificially extend the length or scope of protection of the underlying work.

Compared to fair use

Even if a work is found to be an unauthorized derivative, an alleged infringer can escape liability via the defense of fair use. For example, in Campbell v. Acuff-Rose Music, Inc., the Supreme Court found that although a parody of the song "Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense.

Canadian Law

Though Canadian copyright law does not explicitly define "derivative work", the Copyright Act of Canada does provide the following generally agreed-upon^[1]^[2] examples of what constitutes a derivative work in section 3:

"copyright"...includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work

Example

Since many films are based on novels or scripts they are classed as derivative works. In cases where the film's copyright has lapsed but the original work is still covered, the film cannot be freely distributed without the permission of the original author on whose work the film was based.^[3] For example, the 1912 George Bernard Shaw play Pygmalion was made into a film of the same name in 1938. The film's protection had lapsed and it was thus released into public domain, but that of the original play was retained. After a third party released prints of the film they were challenged by the copyright-holders of the play, with a court ruling that releasing the prints was a copyright infringement.^[4]

Software

The definition of derivative works of software is not entirely clear.[1]

This is a particular problem for software distributed under licenses such as the GPL which restrict how derivative works may be distributed. For example, the GPL grants permission to distribute a derivative work of a GPL-covered program, but only if the derivative work is itself distributed under the GPL.

A more detailed account on the issue can be found at Derivative Works by Lawrence Rosen.