Is the work a derivative work? How can you tell?

While a work is protected by copyright, only the owner of the copyright in that work has the right to create, or to authorize someone else to create, a new version of that work. But what about public domain works? Aren’t they free for the taking? Yes ... but even when a work is in the public domain, a new work that’s based on it may be protected by copyright.

How? Let’s see.

A derivative work is a new version of an already existing work

Let’s start with a definition. A “derivative work” is based on (or derived from) one or more already existing works. It’s a new version of the work, basically. Derivative works include things like translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. (If you want the statutory definition, see 17 USC § 101.)

Maybe some examples would help?

All of these would be copyrightable derivative works (just to give you an idea), as long as they were original works of authorship:

The derivative work must borrow from the prior work

To qualify as a derivative work, the derivative must use a substantial amount of the prior work’s expression. How much? Enough so that the average person would conclude that it had been based on or adapted from the prior work. It’s a common sense thing. (Which means it’s great fodder for argument ... you know, that thing lawyers love to do.)

Merely borrowing the ideas expressed by the prior work (creating a work “inspired by” it) would not create a derivative work. Ideas are not copyrightable. A work is not derivative unless it has been substantially copied from a prior work’s expression. See Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984).

Here’s a famous (some would say infamous) example ...

Art Rogers' photo

Photo by Art Rogers

Jeff Koons' sculpture

Sculpture by Jeff Koons

Artist Jeff Koons bought a note card displaying Art Rogers’ photo of a group of puppies with their owners, tore the copyright notice off the card, and hired an Italian foundry to make four sculptures based on the photograph. Rogers sued, and the court decided that Koons’ sculpture was an infringing derivative work rather than a parodic fair use.

Why? Because the similarity was so close that the average person would recognize the copying. So ... the sculpture was found to infringe Rogers’ copyright. Because the court found the works to be so similar (they call it “substantial similarity”) the small changes Koons made didn’t save him from infringement.

Koons’ additions, such as flowers in the couple’s hair, and the puppies’ blue coats, did not change the fact that the sculptures were overwhelmingly similar to the protected expression of the original work. See Rogers v. Koons, 960 F.2d 301 (2d Cir 1992).

The differences can’t be trivial

To be eligible for copyright, a derivative work must be different enough from the original to be considered a “new work” or must contain a substantial amount of new material. Making minor changes, or adding little of substance to a preexisting work will not qualify the work as a new version for copyright purposes. So ... adding or deleting punctuation won’t cut it; neither will spelling changes or correcting typos. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

So, to take an example from the web ... simply reproducing a public domain text in digital form would not create a derivative work. But adding links to new material, or adding sound or images to the work to enhance it likely would create a derivative work.

What gets the copyright in a derivative work?

The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. It does not extend to any preexisting material. That means the copyright in a derivative work based on public domain material does not restore the copyright of the public domain material. And it doesn’t prevent anyone else from using the same public domain work for another derivative work.

If it’s a derivative work ...

Okay, let’s wrap this up. If the already existing work is in the public domain ... then only the new material that’s been added to it is entitled to copyright protection. The original work remains in the public domain. Just remember that the new material added by the derivative author is not in the public domain.

So what should you do if you want to use the work? The quick answer is ...

Use only those portions of the derivative work that are from the original public domain work. It won’t always possible to do this. For example, you couldn’t use any part of a copyrighted English translation of Virgil’s Aeneid, even though the Aeneid is in the public domain, because the entire translation would be protected by copyright. In that case you’d need to look for a translation whose copyright had expired. (Like the 1909 Harvard Classics translation by John Dryden.)

If you’re using a derivative work, watch out for these ...

When you’re dealing with derivative works based on public domain material, pay particular attention to:



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