What Is Derivative Work? [Definition]

What is derivative work?

Derivative works are the new works “derived” or inspired by existing copyrighted work. Such works involve making subtle changes and additions to the pre-existing original content.

Why it matters

An author creates original material, which often serves as a creative inspiration for many people to develop their own creations.

Sometimes, you will find your creative motivation from other author’s work.

And sometimes, you can be an inspiration for someone else’s story.

Or you would want to augment an existing story or finish an unfinished storyline, or even expand a character’s storyline to another nuance and explore a new shade.

Sometimes, your creation itself will inspire you to come up with a sequel! The cessations are endless!

All these creations will heavily depend on who owns the copyright.

Adapting a new work from an already existing copyrighted work might trigger an infringement or violation of exclusive rights granted by copyright. According to copyright law, this type of work is called derivative works.

Derivative works definition

A derivative work is a work based on or “derived” from one or more already existing work.

Familiar derivative works include adaptations, translations (one language to another), musical arrangements, movies/tv-shows made from written work, reproducing art or plays, and condensations of pre-existing works.

To be copyrightable and qualified as a derivative work, it should include some original material of authorship. This means works with minor edits or changes, or copying the entire original material as a whole won’t qualify as a derivative work.

Also, the derivative work should contain a significant amount of original material. This amount depends on the average person being able to identify that the derivative work has been an adaptation of another original creation.

What are the different types of derivative work?

Here are different types of derivative work:

A novel converted into a screenplay or adaptation
A lithograph based on a painting
A novel translated from one language to another
A drawing or sculpture based on a photograph
A traditional folk song converted with a new music arrangement.
A public domain novel transformed into an illustrated version.

Derivative work example: Art Rogers and Roger Koons

Here’s a complete derivative-work example to understand derivative works better.

Art Rogers once clicked a photo of two owners holding their puppies. The image was sold as merchandise such as greeting cards and postcards.

The photograph inspired the artist Roger Koons. He removed the copyright notice from the card and instructed Italian artisans to recreate Art Rogers’s photo as sculptures.

Rogers sued Koons’s work. The court decided that the sculpture was an infringing derivative work. The image and the sculpture was too similar: the court decided to go Rogers’ way.

Koons did minor changes, like adding flowers and coloring the puppies coat blue. It was not enough to save him from infringement.

Another simple example is – you can’t just convert text from public domain to digital format to create a derivative work.

However, add your work to it – like links, images, videos, etc. – to the public domain work will help create a derivative work.

To put in simple words, you just can’t make minor changes to original work and pass it off as a derivative work. There needs to be some originality – some form of your own work – with substantial amounts of actual work for the material to pass as a derivative work.

Do you require permission to create a derivative work?

According to copyright law, the original author of the work has the power to reproduce and distribute his copyrighted work.

He also has the power to authorize someone else to create a derivative work based on his original work.

However, if you are making use of copyrighted work without proper permission, then your work will constitute copyright infringement. Working with copyrighted work requires appropriate permissions.

Whereas there are instances that do not require any permissions.

These are:

Your own copyrighted work: Here, you are the author of your original work. As stated above, the copyright law grants you the power to recreate, reproduce, and distribute your original work. However, if you give permission to someone else to create a derivative work, you are prevented from making a derivative work of your own material.

The public domain: If you are making use of work from the public domain, then you do not need any permission to create a derivative work.

Fair use: If your work falls under the fair use category, then you do not need any permission. Fair use allows the use of copyrighted work for purposes like criticism, parody or satire, research or study, and news reporting.

Who owns a derivative work?

According to copyright law, the original work’s author has the sole right to create a derivative work.

However, if the author grants the necessary permission to create a derivative work, the original work’s owner will not have any rights on the derivative works copyright.

After the copyright owner grants permission to create a derivative work, the grant cannot be changed or ceased by the original work’s owner.

The derivative work owner will hold all the copyright rights to his derivative work. It include the rights to recreate, transfer, and grant permission to use his derivative work.

Note that the derivative-work owner will not hold any rights on the original work.

What gets copyrighted in a derivative work?

The copyright in the derivative work only covers the new additions, changes to the original work, or anything that is appearing for the first time in the work.

If a derivative work is created using public domain material, then only the derived work is copyright protected. The protection does not extend to the already existing work.

Therefore, when a derivative work is copyrighted is derived from public domain material, that does not mean other people cannot use that public domain work. So, the public domain work will remain in the same medium and will not prevent anyone else from making use of the work to create another derivative work. Copyright in a compilation and collective works extends only to the selection, coordination, and arrangement of the material.

Also, copyrighting your derivative work will not extend the duration of the copyright on the pre-existing material.

How to register a derivative work?

Registering a derivative work involves providing information about the copyrighted material used, the necessary permissions, the year in which the new work was created, and a description of the derivative work.

The bottom line about derivative work

You are ready to prepare your derivative work, provided that you are up-to-speed with how things operate.

Using copyrighted material will require you to get the necessary permissions, unless the material comes from the public domain works.