Updated October 2026: We updated the fair use and transformative use discussion to reflect the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), which held that adding new expression or meaning is not enough on its own to make a use transformative, particularly where the new work serves the same purpose as the original.
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 fair use, and an important part of that analysis is whether the new work is “transformative” of the original. Whether a use is sufficiently transformative will, of course, be decided by a court in a copyright infringement lawsuit. But transformation is not the end of the inquiry. A transformative use weighs in favor of fair use under the first statutory factor, and the court still weighs all four fair use factors before deciding whether the derivative work is a “fair use” that will not be deemed copyright infringement.
Whether a derivative work is transformative has often been in the “eye of the judge.” As such, what is considered transformative is difficult to predict and a bit difficult to define. For example, before 2023, one criterion given by a court 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?
After the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), differences like these are not enough on their own. A new aesthetic, a new meaning, or a new message may still matter, but the court will ask whether the use has a further purpose or different character from the original, and it will weigh that difference against whether the use is commercial. The Court also noted that the copyright owner’s exclusive right to prepare derivative works already covers many transformations of a work, such as adaptations and new versions, so the degree of transformation needed to support fair use must go beyond what it takes simply to create a derivative work. Said another way, if the derivative work is used for the same purpose as the original, such as licensing an image to illustrate a magazine story, artistic changes alone will rarely carry the first factor.
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 an internet law firm, and copyright matters are a core part of our practice.
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 factor often carries significant weight in modern fair use analysis. In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the Supreme Court asked whether the new work merely supersedes the original or instead adds something new, with a further purpose or different character. In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), the Court clarified that this is a question of degree: the court asks whether and to what extent the use has a further purpose or different character, and weighs that against the commercial nature of the use. Adding new expression, meaning, or message is not enough on its own, especially where the new use shares the purpose of the original. Commercial use is a negative consideration 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 how courts apply the transformative use concept to derivative works. The case involved Andy Warhol’s silkscreen images based on photographer Lynn Goldsmith’s photograph of Prince. The only use before the Court was the Warhol Foundation’s 2016 commercial license of one of those images to a magazine publisher to illustrate a story about Prince. The Court held that the first fair use factor weighed against the Foundation on that use, even assuming Warhol’s image added new expression or meaning, because the licensed image served substantially the same purpose as Goldsmith’s photograph (illustrating magazine stories about Prince) and the use was commercial. The Court did not decide whether Warhol’s creation of the original silkscreens, or their display in a museum, was fair use.
This decision signals that courts should not simply ask whether an artist added new meaning to an existing work. Instead, courts should focus on the specific use being challenged and ask whether that use serves a different purpose than the original, or the same commercial function. The same work can be fair use in one setting and infringing in another. 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.
