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What is a Derivative Work Copyright?

Published in Copyright Law 5 mins read

A derivative work copyright protects original creative contributions made to a pre-existing work. A "derivative work" itself 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. This type of copyright offers protection only for the new material, additions, or modifications that are original to the derivative work, not for the underlying pre-existing work.

Understanding Derivative Works

A derivative work takes an existing creative work and adapts, transforms, or builds upon it in a new and original way. While it draws heavily from a prior creation, it must contain sufficient new creative authorship to be considered an independent work.

Key characteristics of a derivative work:

  • It incorporates a substantial amount of material from a pre-existing, copyrighted work.
  • It adds new, original creative elements or significant transformations to that material.
  • It requires permission from the copyright holder of the original work, unless the original work is in the public domain or its use falls under specific exceptions like fair use (in the U.S.) or fair dealing (in other jurisdictions).

The Scope of Derivative Work Copyright

The copyright in a derivative work is distinct from, but dependent upon, the copyright in the pre-existing work. It provides specific protection for the new creative elements introduced by the author of the derivative work.

Originality Requirement

To qualify for derivative work copyright, the new work must exhibit a certain level of originality. This means the additions or transformations must be creatively distinct and not merely a trivial alteration or a faithful copy. For instance, scanning a painting to create a digital image is generally not considered a derivative work for copyright purposes unless significant creative enhancement or manipulation is applied.

Permission is Key

Creating a derivative work typically requires obtaining a license or explicit permission from the copyright owner of the original work. Without such authorization, the derivative work may infringe upon the original copyright holder's exclusive right to prepare derivative works. This is a critical consideration for anyone looking to adapt existing content.

Independent but Dependent Copyright

While the derivative work receives its own copyright, this new copyright does not affect or extend the scope or duration of the original copyright. The new copyright protects only the original contributions made by the derivative work's creator.

No Extension of Original Copyright Term

The term of copyright for a derivative work begins when the derivative work is created and fixed in a tangible medium, or when it is published, depending on the jurisdiction. It does not extend the copyright term of the original underlying work. For example, if a book is adapted into a film, the film's copyright term begins when the film is created, entirely separate from the book's original copyright term.

Common Examples of Derivative Works

Derivative works are prevalent across various creative industries. Here are some examples:

  • Translations: A book translated from English to Spanish.
  • Film Adaptations: A novel adapted into a screenplay and subsequently a motion picture.
  • Musical Arrangements: A classical piece re-arranged for a jazz ensemble.
  • Abridgments or Condensations: A lengthy academic text condensed into a shorter, more accessible version.
  • Sequels, Prequels, or Spin-offs: New stories set in an existing fictional universe, featuring its characters and settings, if they involve substantial original authorship.
  • Art Reproductions: A photograph of a sculpture, or a digital painting inspired by a famous artwork, if they involve creative decisions beyond simple copying.
  • Sound Recordings: The recording of a musical composition, where the performance and production elements are original contributions to the underlying song.

Original Work vs. Derivative Work Copyright

Understanding the distinction between the original work and its derivative is crucial for creators and rights holders.

Feature Original Work Copyright Derivative Work Copyright
Protects The initial creative expression and fixed form. Only the new, original additions or transformations.
Foundation Stands alone, no prior work required. Based on, and incorporates, a pre-existing work.
Permissions Not needed from others to create (unless infringing). Generally requires permission from the original copyright holder.
Scope Covers the entire original creation. Does not affect the copyright of the underlying work.
Term Its own independent copyright term. Its own independent copyright term, starting upon creation/publication of the derivative work.

Practical Insights for Creators

  • Seek Permissions Early: If you plan to create a derivative work based on copyrighted material, initiate discussions with the original copyright holder for licensing or permission before investing significant time and resources.
  • Document Agreements: All permissions and licensing agreements should be clearly documented in writing to avoid future disputes.
  • Understand Public Domain: Works that are in the public domain can be freely used to create derivative works without requiring permission. However, the derivative work itself can then be copyrighted.
  • Consider Fair Use/Fair Dealing: In some cases, a very limited or transformative use of a copyrighted work might fall under fair use or fair dealing doctrines, which allow use without permission. However, this is a complex legal area and often requires careful consideration.

Understanding derivative work copyright is essential for navigating the landscape of intellectual property, enabling creators to build upon existing foundations while respecting the rights of original authors.