A Derivative Work is a new creation that is based on or derived from one or more existing works. This could include translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, art reproductions, abridgments, and any other form in which a work may be recast, transformed, or adapted. Creation of derivative works often does not qualify as fair use without permission from the original work’s copyright owner.
Definition of Derivative Work
Derivative work refers to a work that is substantially derived from one or more preexisting works. The U.S. Copyright Office defines a derivative work 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’”.
Types of Derivative Works
Adaptations
These are works transformed from one format to another, such as books turned into movies or plays.
Translations
Translating a book from its original language to another language constitutes creating a derivative work.
Spin-offs
When elements from an original work are used to create a new story, like a TV series based on a novel.
Transformative Works
These expand by adding new content or changing the medium, such as a novel adapted to a comic book format.
Legal Considerations
Copyright Protection
Derivative works are protected under copyright law, granted they contain original, creative elements added by the author of the new work.
Permission and Licensing
Creating a derivative work typically requires permission from the original work’s copyright holder, often in the form of a license.
Fair Use Doctrine
There are instances where derivative works can be used without permission under the fair use doctrine. However, this is determined on a case-by-case basis, considering the purpose, nature, amount used, and effect on the market.
Examples of Derivative Works
Movies Based on Books
Many Hollywood movies are adaptations of novels or comic books, such as Harry Potter series derived from J.K. Rowling’s books.
Sequels and Prequels
Continuations of original stories, like Star Wars sequels and prequels, are derivative works.
Musical Covers and Arrangements
New versions of famous songs, whether rearranged or performed by different artists, qualify as derivative works.
Historical Context
The concept of derivative works has evolved alongside copyright laws. The Berne Convention for the Protection of Literary and Artistic Works in 1886 was a milestone in establishing international standards for the protection of derivative works.
Applicability in Different Fields
In Literature
Authors can create spin-offs or extend universes based on existing literary works.
In Software Development
Programmers may create derivative software by modifying or building upon existing code.
In Music
Composers may create variations or medleys that are based on existing musical pieces.
Comparisons to Related Terms
Original Work
An original work is one that is created independently and not based on any preexisting works.
Plagiarism
Plagiarism involves using someone else’s work without giving credit, while derivative work acknowledges the original source and often requires permission.
FAQs
Is fan fiction considered a derivative work?
Yes, fan fiction is generally considered a derivative work as it is based on existing characters and settings from original works.
Can derivative works be copyrighted?
Yes, derivative works can be copyrighted, provided they incorporate original, creative elements of their own. However, the copyright protection extends only to the new material and not to the underlying preexisting work.
Do parody works count as derivative works?
Parodies may be considered derivative works. However, they may fall under fair use, especially if they provide social commentary or criticism of the original work.
References
- U.S. Copyright Office. (n.d.). Derivative Works. Retrieved from www.copyright.gov.
- WIPO. (n.d.). Berne Convention for the Protection of Literary and Artistic Works. Retrieved from www.wipo.int.
Summary
In summary, derivative works are an essential component of creative industries, allowing existing works to be transformed and adapted into new forms. They require careful consideration of copyright laws and often necessitate permission from the original creators. Understanding derivative works is crucial for authors, artists, producers, and anyone involved in creative and intellectual property-related fields.
