Derivative work


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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.

Contents

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”.

The statutory definition, however, is incomplete and the concept must be understood with reference to explanatory case law. For copyright protection to attach to an alleged derivative work, the later work must embody sufficient new expression, over and above that embodied in the earlier work for the later work to satisfy copyright law’s requirement of originality. Although emphasis on originality, at least so designated, began with the Supreme Court’s 1991 decision in Feist v. Rural, pre-Feist decisions addressed this requirement. Thus in the celebrated[opinion needs balancing] Second Circuit decision in the Batlin case, one licensed maker of Disney plastic toys sued another Disney licensee for copying the design of Mickey Mouse and Donald Duck toys. The court held that no copyright protection attached to the first company’s toys because they differed from the Disney originals only in routine ways dictated by the technology of transforming a two-dimensional cartoon figure into a three-dimensional plastic molding.

On the other hand, the changes from the original work to the later work may be too trivial for the maker of the later work to be held an infringer, if the accused infringer has made the changes on a copy purchased from the copyright proprietor or its licensee. Thus, Judge Easterbrook explained in his opinion in the Annie Lee case that, when the defendant affixed the copyright owner’s copyright-protected note cards and small lithographs to tiles and then resold them, “[t]he art was bonded to a slab of ceramic, but it was not changed in the process.” Therefore the defendant’s conduct did not give rise to copyright infringement liability.

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.

Transformativeness

A crucial factor in current legal analysis of derivative works is transformativeness.[citation needed] This factor assumed prominence after the Supreme Court emphasized it in its fair-use analysis of the parody involved in Campbell v. Acuff-Rose Music, Inc. In parody, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work.

In cases involving Internet technology, the transformativeness comes from an added benefit to the public, not previously available, that the derivative work provides. For example, in Kelly v. Arriba Soft Corporation, the use of reduced-size reproductions ("thumbnails") of Kelly’s work in Arriba’s pictorial search engine made it possible for the public to find images on the Internet much more effectively than was previously possible — in fact an image search engine would likely be infeasible without the use of thumbnails as an indexing device.

In polar cases, the economic harm to the copyright proprietor is small and the benefit to the public from the new use is substantial, or the benefit is negligible but the impairment of the copyright proprietor’s economic interest is great. Such cases are easily decided. But cases that fall in the middle of the spectrum — where both benefit to public and economic harm to copyright proprietor are substantial — are far more difficult, and courts have not yet opined about this pattern. The use of pop-up advertising, in which third-party advertisements pop up on a competitor’s Web page, may present this issue, but no court has yet addressed it in terms of balancing the interests at stake.[1]

Examples of derivative works under US law

The most famous derivative work in the world is said[who?] to be L.H.O.O.Q., also known as the Mona Lisa With a Moustache. Generations of US copyright law professors — since at least the 1950s — have used it as a paradigmatic example. Marcel Duchamp created the work by adding, among other things, a moustache, goatee, and the caption L.H.O.O.Q. (meaning “she has a hot tail”) to Leonardo’s iconic work. These few, seemingly insubstantial additions were highly transformative because they incensed contemporary French bourgeoisie, by mocking their cult of “Jocondisme,” at that time said to be “practically a secular religion of the French bourgeoisie and an important part of their self image.” Duchamp’s defacement of their icon was considered “a major stroke of epater le bourgeois." Thus, it has been said that the “transformation of a cult icon into an object of ridicule by adding a small quantum of additional material can readily be deemed preparation of a derivative work.”[2]

The mockery of “O Pretty Woman,” discussed in the preceding section, is a similar example of transforming a work by showing it in a harsh new light or criticizing its underlying assumptions. Trivia books, based on TV shows, such as ‘’Seinfeld’’, are considered derivative works.[3]

As indicated in the preceding section, pop-up advertising can present very difficult issues in balancing interests between the copyright proprietor of the content of a Web site, on the one hand, and the interest of the public and competitors in facilitating price comparison, on the other hand. When a pop-up advertisement appears on the screen display of Amazon.com, saying “Half.com will sell you these books for 10% less,” whose interest should prevail? That of Amazon in the integrity of its Web site. Or the public’s in buying cheap books, championed by Half.com?[4] This point is discussed in Computer Law teaching materials for a Washington DC law school.[5]

Canadian law

Though Canadian copyright law does not explicitly define "derivative work", the Copyright Act of Canada does provide the following generally agreed-upon[6][7] 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.[8] 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.[9]

Software

The definition of derivative works of software is not entirely clear.[7]

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.

See also

References

  1. ^ See generally Computer Law Materials on Pop-Up Advertising at [1] and [2]. See also the discussion of the implications of the Arriba Soft case in L.H.O.O.Q.--Internet-Related Derivative Works.[3]
  2. ^ L.H.O.O.Q.--Internet-Related Derivative Works [4].
  3. ^ See Castle Rock Entertainment, Inc. v. Carol Publishing Group.
  4. ^ See [5].
  5. ^ See [6].
  6. ^ "Supreme Court of Canada - Decisions - Théberge v. Galerie d'Art du Petit Champlain inc.". Retrieved on 2008-05-24. "examples of what might be called derivative works [are] listed in s. 3(1)(a) to (e) of our Act"
  7. ^ "Creative Commons Attribution 2.5 Canada Legal Code". Retrieved on 2008-05-24. "Derivative works include: ..."
  8. ^ Avner, Jon. "Can I Show "It's A Wonderful Life" ?". Accessed 26 August 2006.
  9. ^ Lloyd L. Rich. The Publishing Law Center. 1998. "The Public Domain and the Impact of New Legislation". Accessed 26 August 2006.

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