Derivative work
From Free net encyclopedia
In copyright law, a derivative work is an second artistic creation that includes major basic copyrighted aspects of an original first work that was previously created. Those basic first work originator's copyrights must be granted to the secondary work for the secondary work to be rightfully called a 'derivative work'. If no copyright permission is granted from the first originator, the second creation is called a 'copy'.
United States Law
In the United States, "derivative work" is defined in Template:UnitedStatesCode:
- A "derivative work," that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an "original work of authorship." Derivative works, also known as "new versions," include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a "derivative work" or "new version."
- 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.
- WHO MAY PREPARE A DERIVATIVE WORK? 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. +++
From another informative Artslaw Org website: The copyright provides the owner with a number of exclusive rights, including the right to make new versions of the original work, called derivative works. This concept also protects an artist from having his/her original work reproduced in a different media by another artist, without the consent of the first artist[1].
Stanford Law School Center Chilling Effecys discusses 'Derivative Works'. If you are an author or an artist and you want to use all or part of someone else's creation in your work, you may run into problems with claims that your art is a derivative work[2]. On it's FAQ page: Question: Can I take a character from a movie, like Chewbacca from Star Wars, and use it in a play with a very different plot and otherwise different characters? Answer: Probably not. The people who hold copyright in Star Wars own the characters as well as the plot, the filmed images, etc. Placing a distinctive fictional character in a different context or medium is still copying that character, and therefore infringement[3].
From Hudis Sullivan Copyright Article on 'derivative work': Although a derivative work author usually has been authorized, through license, to incorporate the previous work into his derivation, he does not gain thereby a copyright in any preexisting material.
Other courts, including the Eleventh Circuit Court of Appeals, take the view that an owner of a copyright registration for an original work should be permitted to sue for infringement of his derivative work without a separate registration. These courts proceed on the theory that (1) the original work author has the exclusive right to sue for infringement of his work; (2) a derivative work, by definition, includes the work that would be infringing without the consent of the original rights holder; and therefore (3) the original author's ability to sue on the original work carries over to any derivative work[4].
The correct specific legal term, 'derivative works' is only for a copyright permitted or licensed secondary 'work'. Any uncopyrighted, unauthorized or unlicensed secondary properties are called 'copies'. 'Copies' are not legally protected from the original copyright owners in copyright infringement suits. Terms like 'unauthorized derivative works' is an incorrect and confusing legal term.
The concept and legal term derivative works is a logical extension of the framework of copyright protection in the United States. It prevents others from misappropriating the original work of a creator and redistributing it with "trivial" changes without the originator's copyright permission. If a derivative work is created with the permission of the original creator, the secondary creator maintains a copyright interest in only the aspects of the derivative work that are his or her original creations.
See also
External links
- US Copyright Act (Hosted by the Copyright Office)
- US Copyright 'Derivative Works' (Hosted by the Copyright Office)
- Frequently Asked Questions (and Answers) about Derivative Works
- Article "Geek Law: Derivative Works" by Lawrence Rosen
- Article "DERIVATIVE WORK RIGHTS" by David M. Spatt
- Article "L.H.O.O.Q.--Internet-Related Derivative Works" by Richard H. Stern
- Article "Derivative Works" by Sarah Ovenallfr:Travail dérivé