What is a derivative work?
What are the common derivative works?
What are your rights and limitations on derivative works?
What happens when you create work inspired by the work of another?
In this article, we will break down the notion of derivative works in simple terms so you know all there is to know about it.
Are you ready!
Let’s get started…
Table of Contents
What is a derivative work?
A derivative work is based on already existing works or derived from it.
Common derivative works can include:
- Translations
- Musical arrangements
- Motion picture versions
- Versions of literary materials or plays
- Art reproductions
- Abridgments
- Condensation of preexisting works
- Cinematic adaptations
- Sound recordings
- Dramatization
- Fictionalization
Another common type of derivative work is when you create a “new version” or a “new edition” of a preexisting work.
The editorial revisions, annotations and elaborations, which as a whole, are original will represent derivative work.
The derivative work in of itself is a new expressive creation that incorporates or includes copyrightable elements of the original work.
For a work to be considered “derivative work”, it must a sufficient level of originality from the original work where the author gives the derived work his or her personality.
Without a sufficient level of transformation, modification or adaptation of the original work, we may not have a derivative work.
What are derivative works under US Copyright law?
To understand derivative works, looking at how the U.S. copyright laws define the matter is essential.
In the United States, the Copyright Act of 1976 governs all matters related to copyrights and derivative works.
Let’s look at the rights afforded to a copyright holder on derivative works.
Derivative work definition under the Copyright Act
The Copyright Act (17 U.S.C. §101) in the United States defines “derivative work” as follows:
“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.'”
The derivative work is considered “as a whole” and not just the newly derived elements.
There are two requirements to be met:
- The work must be fixed in a tangible medium
- It has to be an independent work
If the work is adapted in a creative way or modified and is independent of the original work, you have a derivative work.
Rights of a creator on the original work
Copyright laws protect the original works authored or created by an individual or company.
Here are some possible original creations protected by copyright laws:
- Writing books
- Writing manuscripts
- Music
- Producing a film
- A video
- Writing computer code
- Paintings
- Works of art
- Photos
The author or creator of the original work will generally have the following rights:
- The right to reproduce the work
- The right to distribute copies of his or her work
- The right to publicly perform the work
- The right to publicly display the work
- The right to prepare derivative works based on the original work
The copyright on the original work is automatically vested onto the author without any registration requirements.
It is not mandatory for the work to be registered for the copyright laws to protect the original work but in some cases, it can be very useful.
The author of an original work can register his or her rights with the U.S. Copyright office as needed.
License on the original work
The owner or creator of the original work is the only person who is entitled to all rights on his or her work, including the ability to create derivative works.
What typically happens is that the owner of the original work will grant license rights to another person to create derivative works based on the original work.
Section 106 of the Copyright Act states that the copyright owner has the exclusive right to prepare and authorize others to prepare derivative works based on the copyrighted work.
In that context, the creator of the derivative work will own the new or derived works and the original owner retains his or her rights on the original work.
However, if the original owner did not authorize someone to create or develop derivative works, any such derivative work will result in copyright infringement.
Is a derivative work copyrightable?
Yes. A derivative work can is copyrightable under US copyright laws provided that it adds new elements or new works of authorship to the original work.
A slight revision or modification of the original work does not qualify as a derivative work and therefore is not copyrightable.
What does the copyright on derivative work include?
Under copyright laws, a derivative work can be protected or registered as a copyright.
The copyright on a derivative work will cover the new element of authorship or what was added to the original and preexisting work.
The protections granted on the derivative work will not extend to the original preexisting work.
The original work will always remain the work of the original author or creator.
Whether the original preexisting work was registered to someone or was in the public domain, the copyright laws will allow the author of a derivative work to protect the newly derived work.
What is a copyright notice?
A copyright notice is when a work contains a notice as to the copyright owners.
The notice serves as notifying people that this work is protected or is the copyright of someone.
For example, a copyright notice might indicate that the original work is owned by one person and an adaptation was created by another person.
We generally see the following: © 2002 – NAME.
A copyright notice is optional by law but useful to include.
What happens when a license to create derivative works is terminated?
The original author may grant a license that can automatically expire or terminate in some form or fashion.
Section 203 of the Copyright Act states that if a person’s right to create derivative works is terminated, any derivative works lawfully created during the license grant period can continue to be used.
In other words, the termination of the license will not render past derivative works infringing.
Who owns derivative work?
The creator of the original work is the only person who has the right to create a derivative work based on his or her own original creation.
If he creates a “new version” of his or her work, the original author will own the original work and the derived work.
However, in many cases, the original author will authorize a third party to adapt, modify and create derivative works inspired and based on the original work.
Such rights are often granted under a license agreement or an assignment agreement.
In that case, the third party will own the rights on the derivative work provided the third party had been duly authorized by the original author of course.
Any unauthorized derivative works or works outside of what the original author had permitted can lead to copyright infringement.
How do you determine what’s an original work?
For a work to be considered as a derivative work, under the copyright laws, you must meet two requirements:
- The work must be fixed in a tangible medium
- It has to be an independent work
A derivative work must have a sufficient degree of independence from the original work.
In other words, the author or creator of the derivative work must make an effort to tailor the original work, adopt it, modify it and incorporate his or her creativity and personality into the derivative work.
The courts in the US refer to this as a “modicum of creative spark”.
The closest derivative work to the original work can be a translation for instance.
You can assess if a work is a derivative work or not another way.
A minor adaptation or slight variation of the original work will not qualify as a derivative work as you do not have sufficient originality in the actual derivative work.
Do you need permission to create a derivative work?
You need the permission of the copyright holder of the original work to create derivative works.
When permission is needed to create derivative work?
Under copyright laws, the original author or creator has the exclusive rights to prepare and authorize derivative works based on the original work.
For example, the novelization of a movie will require the permission of the copyright holder of the movie.
The production of a motion picture based on a novel will require the permission of the author to produce a movie based on the novel.
When permission is not needed to create derivative work?
There are some situations where a person can create derivative works without the permission of the original copyright holder or require any form of a license agreement.
Derivative based on your own work
Evidently, the owner of the copyright has the exclusive right and ability to create derivative work based on his or her own work.
For example, the Harry Potter sequels were all derivative writings of the same original authors.
This is fairly obvious, so we will not ponder on this any further.
Expiration of the copyright and the public domain
If the copyright on the original work is expired, then you can use the work without the permission of the original copyright holder as the work will fall into the public domain.
A person has the exclusive rights on an original work during his or her lifetime and for an additional 70 years following death.
After that, the material will fall into the public domain.
A work published anonymously will enter into the public domain at the earliest of either 95 years after its publication or 120 years from its creation.
A person can create derivative work based on material he or she gathers from the public domain without the need for a permission or license from anyone.
The most notable examples today are the Shakespear plays are all part of the public domain.
“Fair use” doctrine
The “fair use” doctrine is an exception to the copyright rule.
What is the fair use doctrine?
The fair use doctrine states that a person can create a work inspired by the work of another and without the permission of the creator of the work offering the inspiration.
For example, if a person wants to create a video of movie reviews, the person may need to use elements or segments of the original movie so he can show in his or her own review.
Same thing for a person writing about book reviews.
To review books, you may need to reproduce elements of the book.
Under the fair use doctrine, a permission will not be required.
Without using a clip or a segment of the movie, it may not be possible to offer a good review.
Another example of accepted fair use of copyright material is when artists make a parody, make fun of other figures or criticize someone or something in their piece.
What some examples of derivative works?
To give you a better understanding of what is derivative work, let’s look at a few examples:
- A motion picture based on a play
- Translation of a book into other languages
- Drawing based on an actual photograph
- A musical arrangement based on another
- Modifying aspects of a website
- Remixing of music already released
- Creating a movie sequel
- New edition of a textbook
- Updates to a software source code
- Fanfiction
- Photographs of a sculpture
Takeaways
A derivative work is based on already existing works or derived from it.
Common derivative works can include:
- Translations
- Musical arrangements
- Motion picture versions
- Versions of literary materials or plays
- Art reproductions
- Abridgments
- Condensation of preexisting works
- Cinematic adaptations
- Sound recordings
- Dramatization
- Fictionalization
The derivative work in of itself is a new expressive creation that incorporates or includes copyrightable elements of the original work.
For a work to be considered “derivative work”, it must a sufficient level of originality from the original work where the author gives the derived work his or her personality.
Can a derivative work be copyrighted?
Absolutely.
The creator of the derivative work has a copyright on the derivative work.
The right does not extend to the original work that may be owned by someone or in the public domain.
There also some instances when you can create derivative work without the permission of the original creator.
We hope this article gave you the base on derivative works.
