What is a Derivative Work?
Section 101 of the U.S. Copyright Act defines a derivative work as “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’.”
Some examples of derivative works include:
- A novel adapted into a screenplay, motion picture, or stage production
- A new edition of a textbook that includes additions and revisions
- A drawing based on a photograph
- An update to software code
- A new version of an existing computer program
- A sequel to a novel or movie
- A translation of a book into another language
- A musical arrangement of an existing musical composition
A derivative work refers to the work as a whole and not just to the modifications. There must be substantial new material for a work to be copyrightable as a derivative work, and this new material must meet the originality and creativity requirements of copyright on its own. Further, although the preexisting material is part of the derivative work, the copyright in the derivative work only extends to the new material and so the owner of the derivative work copyright has no exclusive rights to the preexisting material.
Under the Copyright Act, a copyright owner has the exclusive right to prepare, or authorize others to prepare, derivative works based on a copyrighted work. Because preexisting material is part of a derivative work, the owner of the copyright to that preexisting material may bring a copyright infringement lawsuit against a person who creates a derivative work without permission. To avoid a lawsuit, prior to preparing a derivative work, the creator of the derivative work could seek a license from the owner of the copyrighted preexisting material. It would be wise to have a written license agreement with all the terms carefully listed.
Once a license agreement is in place, termination of the grant affects the right to create future derivative works, but does not affect the derivative work prepared under the authority of the grant before termination. This means that a creator of a derivative work may continue to such a work that was begun under the terms of the license agreement; the creator just cannot prepare future works after the license is terminated.
There are a couple other exceptions that would exempt a derivative work from a copyright infringement lawsuit. First, if the copyright in the preexisting material has expired, there will be no infringement. Copyright protection does not last forever, and once the copyright term has ended, the work enters the public domain and may freely be used by anyone. Another exception is that of fair use. Fair use is the idea that a copyrighted work may be used for purposes that are beneficial to society, such as journalism, criticism, commentary, teaching, scholarship, and research. Other common types of fair use are parody and satire. Determining whether a derivative work falls under the fair use exception can be complicated.
The safest option is to ask for a copyright owner’s permission, and when necessary, paying for a license, before using a preexisting work as the basis for a derivative work.
Author: Karen Y. Kim
The opinions expressed are those of the author on the date noted and do not necessarily reflect the views of Lucem, P.C. or any of its other lawyers. This post is for general information purposes only and is not intended to be and should not be taken as legal advice.
