The answer is: “yes, but not always.” In general, US copyright law allows the owner of an original work of authorship to prohibit the creation and display of derivative works without authorization. For example, if I write a marvelous novel, it is copyright infringement for someone to write and perform a theater production or make a movie based on my book without authorization. From this information page published by the US Copyright Office, other examples of derivative works include:

• A translation of a book/novel into another language
• A revision of a previously published book
• A sculpture based on a drawing (or a drawing based on a sculpture)
• A drawing based on a photograph
• A lithograph based on a painting
• A musical arrangement of a preexisting musical work
• A new version of an existing computer program
• A revision of a website

So, without question, a person can be sued for copyright infringement for publishing derivative works. If this has happened to you, call us here at Revision Legal. We can help if you are accused of copyright infringement of a derivative work. We are an Internet Law Firm with deep experience with defending and prosecuting copyright infringement litigation.

One defense to a claim of derivative works copyright infringement is that the derivative work is sufficiently new and original that the law will consider the new work to be transformative of the original. Whether something is sufficiently transformative will, of course, be decided by a judge in a copyright infringement lawsuit. But, if the court agrees that a derivative work is transformative, then the derivative work will be considered “fair use” and, thus, will not be deemed copyright infringement.

Whether a derivative work is transformative is really in the “eye of the judge.” As such, what is considered transformative it is difficult to predict or is a bit difficult to define. For example, one criteria given by a judge for holding a derivative work to be transformative was that the new work manifested “an entirely different aesthetic.” This was based on several identifiable differences including:

• Use of color if the original was in black and white or the converse
• Different color palette
• Differences in composition
• Presentation — the “feel” of the two works
• Recombination of elements
• Additional or deleted elements
• Changes in scale
• Differences in artistic “intent” — laudatory vs. critical, for example
• Different media from the original to the derivative work
• How much of the original work was used in the derivative work? Was more used than was necessary?

Other Defenses: Derivative Works Copyright Infringement

The defense that the derivative work is transformative falls under the general category of “fair use” of copyrighted works. There are other methods in which a derivative work might be considered “fair use.” These include creation for the purposes of scholarship, education, parody, news reporting and more. If you have questions about protecting your copyrights and other intellectual property, contact the copyright lawyers at Revision Legal.You can contact us through the form on this page or call (855) 473-8474. We are lawyers specializing in internet law.

The Four-Factor Fair Use Analysis for Derivative Works

When a defendant raises fair use as a defense to a derivative works copyright infringement claim, courts apply the four-factor balancing test set forth in 17 U.S.C. § 107. No single factor is determinative, and courts weigh them collectively:

• Purpose and character of the use — this is the most consequential factor in modern fair use analysis. The Supreme Court’s emphasis in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and recently reaffirmed in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), is on whether the use is “transformative” — whether it adds new expression, meaning, or message rather than simply superseding the original. Commercial use is a negative factor but not disqualifying.
• Nature of the copyrighted work — creative, original works (fiction, fine art, music) receive stronger protection than factual or functional works. A derivative work based on a highly creative original is more likely to be infringing.
• Amount and substantiality of the portion used — courts look at both the quantitative amount taken and whether the “heart” of the original work was appropriated. Even taking a small but especially distinctive portion can weigh against fair use.
• Effect on the potential market — this factor asks whether the derivative work harms the market for the original or for any market the copyright owner could reasonably exploit (such as licensing derivative works). Market harm to the original weighs heavily against fair use.

The Warhol Foundation Decision and Its Implications

The Supreme Court’s 2023 decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith significantly narrowed the transformative use doctrine as applied to derivative works. The Court held that Andy Warhol’s silkscreen images based on photographer Lynn Goldsmith’s photograph of Prince were not fair use when licensed commercially to a magazine — even though Warhol’s images could be considered artistically transformative. The Court reasoned that when an allegedly transformative derivative work is used for the same commercial purpose as the original (here, illustrating magazine articles about Prince), the first fair use factor weighs against fair use. This decision signaled that courts should not simply ask whether an artist added new meaning to an existing work, but whether the new work serves the same commercial function as the original.

For businesses and creators, Warhol Foundation means that relying on “artistic transformation” as a copyright defense is significantly riskier than it was before. If you are creating or using derivative content for commercial purposes, legal clearance before publication is essential.

Licensing as the Safe Harbor for Derivative Works

The safest way to create and commercially use a derivative work is to obtain a license from the copyright owner. Copyright owners have the exclusive right to create and authorize derivative works under 17 U.S.C. § 106(2). A properly negotiated license defines exactly what derivative uses are permitted, in what media, for what geographic territory, and for what time period. Licenses can be exclusive (preventing the copyright owner from granting similar rights to anyone else) or non-exclusive (allowing the copyright owner to grant the same rights to multiple parties). Negotiating favorable license terms — particularly scope of use, royalty structure, and rights on termination — requires experienced copyright attorneys.

If you have received a cease and desist letter alleging that your content infringes a copyright by constituting an unauthorized derivative work, contact Revision Legal immediately. Our copyright attorneys will evaluate the strength of any fair use defense, negotiate with the rights holder, and if necessary, defend you in copyright litigation. We also help rights holders enforce their exclusive derivative works rights against unauthorized users.