If you are an artist or a writer or if you’re simply interested in copyright law, you’ve probably heard the phrase “Derivative Work”. This is a term that gets bandied about quite a bit, but for most its meaning and legal significance are a little fuzzy. But, determining if something is a derivative work is one of the first questions of law and fact that must be made before any copyright infringement claim can be made. So, this blog post is about derivative works: what they are, what they aren’t, and what their significance is in copyright law.
What is a Derivative Work?
The concept of a Derivative Work is defined in the Definitions section of the Copyright Act (17 U.S.C. §101) as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
In plain English, what that means is that a derivative work is also protected under the Copyright Act because it meets two requirements: (a) it is “fixed in a tangible medium” (i.e. not just an idea in the creator’s head), and (b) it is an “independent work”. An independent work is a work where the creator made some independent effort (or “toiled” over the work as described by the courts) and has also brought some form of independent creativity (or a “modicum of creative spark,” also according to the courts) to the the creation of the work.
Thus, simply because a work is derivative does not mean it loses copyright protection, as long as it meets the above two requirements (which are interpreted quite liberally in American copyright law). But, even though a derivative work may be subject to copyright protection, the creator is still limited in how it can use the derivative work without improperly infringing on the prior work’s copyright.
Many judges and attorneys think that they will “know” a derivative work when they see it; much like the informal “you know it when you see it” standard first originated in 1964 when the Chief Justice of the Supreme Court Potter Stewart wrote in a “concurring opinion” on an obscenity case Jacobellis v. Ohio. Potter took the position that, in general, pornography should be speech protected under the First Amendment unless it was “hard-core pornography.” And his definition (such as it was) of what hardcore pornography consists of resulted in an oft-quoted phrase:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
So basically, Justice Stewart punted the question and just two years later the Jacobellis decision was modified in Memoirs v. Massachusetts to establish clearer guidelines and three factors to define what is or isn’t pornography (the details of which are a discussion for another day). But despite the fact that the “I know it when I see it” rule was essentially made obsolete quite quickly, it continues to be referenced by attorneys and lawyers in many fields, including copyright.
But whether or not something is a derivative work can be a complicated question and we can’t always tell just by looking at them. Take for example the current dispute between NBA player Lebron James and Alabama football coach Nick Saban. James is objecting to a web series started by Saban called “Shop Talk” because James believes it was intentionally modeled on his own web series, “The Shop” and is, therefore, an infringing derivative work. Both web series involve Saban or James having casual discussions while in a barbershop. “The Shop” began airing about a year ago while “Shop Talk” only started quite recently. James claims the shows are similar enough that Saban must be emulating his series while Saban claims that he had never heard of “The Shop” before James’ complaint about his show.
As you can probably guess, matters like this can become complicated both factually and legally because at some point (if no settlement is reached first) a judge or jury must not only determine if Saban’s series is actually similar enough to “The Shop” to be considered derivative but also whether there is evidence that Saban actually did come up with the idea entirely independently of James’ show. These sorts of disputes can potentially linger for years (and cost a great deal more in legal fees than most copyright owners can afford) and it doesn’t even answer the more important second part of the legal analysis: whether a derivative work improperly infringes upon the original work or if it’s protected by one or more exceptions to the Copyright Act.
Does a Derivative Work Always Infringe the Original
Though by their nature derivative works do infringe upon the works that inspired them, it does not necessarily follow that all uses of derivative works are actionable infringement under the Copyright Act. There are several exceptions within the law itself that exempt at least some uses from infringement. Here are a few of the most common exceptions:
- The original work’s copyright has expired. Copyrights do not provide permanent protections for the author; for example, in the United States copyrights expire after either the life of the author plus an additional 70 years or set terms of 95 or 120 years (depending on what type of work it was, when it was published, and whether the author was known). It’s the reason that, say, remakes of Shakespeare’s works are so common. And yet, it is not always that simple, as is the case with Sherlock Holmes: even though the copyright for Sherlock Holmes expired in the UK and Europe in 2000 (75 years after the death of Sir Arthur Conan Doyle), due to a quirk in American copyright law (inexplicably named the ‘Sonny Bono Copyright Term Extension Act’) the copyrights for works made after 1922 were extended by twenty years, thus many creators here in the United States are still paying a licensing fees to the Doyle estate.
The creator of the derivative work has a license. As briefly mentioned above, creators of derivative works who wish to make full commercial use of their work can so long as the owner of the original material grants them a license. A written license agreement, if you can afford one, is perhaps the best ways to protect against future infringement claims. But as with any agreement like this, it is crucial that there is a written contract signed by both parties that lays out the precise terms of the license itself. Because of potential pitfalls, having an attorney create or review any license agreement is a good choice, whether you are the one getting or the one granting the license.
The derivative work falls under an exception to the Copyright Act: The exceptions to copyright included in the Copyright Act and interpreted by the courts are the most common defenses in any case involving copyright infringement, but those exceptions are not nearly as broad as many think. Exceptions to the Copyright Act in the United States fall under the umbrella term “fair use”; a phrase used by many but understood by few. I have already written about one example of fair use, the parody exception, and will be blogging about more in the future, so be sure to check those out.
Are derivative works entitled to copyright protection?
The short answer? Yes.
Perhaps the most common misconception about copyright law and derivative works is that derivative works are not entitled to copyright protection in their own right. This isn’t true. If you steal or use a derivative work without a license or an affirmative defense like fair use, you are committing copyright infringement. This includes all kinds of uses of other creator’s work; from publishing or reposting a creator’s work (including fan art and fanfiction) on social media, blogs, or content hosting sites (like Goodreads or Deviantart) without permission from the creator. Or creating accounts on websites (like Etsy, Redbubble, or Zazzle) to see merchandise featuring a derivative work without a license explicitly giving permission for these uses, especially any revenue-generating uses.
In addition, it's also important to note that giving credit to the creator can help in showing “fair use” but it is not enough in and of itself to negate copyright infringement. Especially if the infringement is particularly egregious, as I discussed here. In addition, no matter what many internet users believe, a work does not lose copyright protections simply because the creator posts the derivative work on the internet. If you take anything away from this post, I hope it is this: