Business, Legal & Accounting Glossary
For copyright purposes, a new work based upon an original work to which enough original creative work has been added so that the new work represents an original work of authorship. Examples of derivative works include a translation of a book into another language, a jazz version of a popular tune and a movie based on a play.
In copyright law, a derivative work is an expressive creation that includes major, basic copyrighted aspects of an original, previously created first work.
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, abridgement, 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 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.
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 the 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.
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).
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.
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.
Though Canadian copyright law does not explicitly define “derivative work”, the Copyright Act of Canada does provide the following generally agreed-upon examples of what constitutes a derivative work in section 3:
“copyright”…includes the sole right
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. 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.
The definition of derivative works of software is not entirely clear.
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.
To help you cite our definitions in your bibliography, here is the proper citation layout for the three major formatting styles, with all of the relevant information filled in.
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This glossary post was last updated: 22nd April, 2020 | 11 Views.