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derivative works

What Does “Derivative Works” Mean Under Copyright Law?

By John DiGiacomo

In copyright law, derivative works are original works of authorship that are based on earlier original works of authorship. For example, a sequel to a book or movie is a “derivative” work if characters or storylines and elements carry over from the original to the sequel. Many derivative works “cross artistic fields,” such as motion picture and theater adaptations of literary works or an artistic rendering of a photograph.

But derivative works can also be created in a technical manner. Thus, derivative works can be abridgments, “new editions,” annotations, and language translations of the original work.

Both the original work of authorship and derivative works of authorship are eligible for separate copyright protection and for registration. That is, the original and derivatives have distinct copyright protections. However, to have copyright protections, derivative works must incorporate some or all of an original preexisting work AND must contain some new original copyrightable authorship. Indeed, when attempting to register copyrights for derivative works, the U.S. Copyright Office queries what material has been excluded and what new materials have been added. As an example, the query might be answered as follows:

Copyright sought for motion picture based on NAME of novel:

Material Excluded: Text

New Material Included: Entire motion picture

To be clear, however, copyright protections for derivative works cover only the additions, modifications, or other new material appearing for the first time. Moreover, the new copyright for a derivative work does not cover any part of the original work and does not, for example, extend the length of time for the copyright of the original work. For example, as reported here, Disney’s copyright for “Steamboat Willy” will expire soon. But that expiration does not impact derivative works — such as their famous Mickey Mouse — that were created later.

One of the legal rights granted by copyright law is the original author’s right to control who can create derivative works. That is, only the owner of the copyright for the original work of authorship has the right to prepare or to authorize someone else to create any work that is derived from the original. This has several practical and legal ramifications. First, any unauthorized derivative work will generally be deemed copyright infringement. The owner of the copyright for the original work can sue and potentially obtain significant monetary damages. Second, copyright legal protections do NOT extend to any type of work that is an infringement of another copyrighted work. This means that an unauthorized derivative work does not have common law copyright protection and, most certainly, will not be registered by the U.S. Copyright Office. Indeed, the Copyright Office is quite strict in this regard. When attempting to register copyrights based on derivative works, the Copyright Office requires detailed information regarding the preexisting works of authorship, previous registrations of the preexisting material, original authors, current authors, how the ownership was transferred (if applicable), how adaption/derivative rights were granted, limitations of the grant, extent, and limitations on the new copyright claims, what original material has been excluded/changed, what new material has added to the derivative work, etc.

Contact the Copyright Attorneys at Revision Legal For more information, contact the experienced Copyright Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

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