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Definition
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Berne
United States
European Union
Canada
Significance, history and social context
Application of derivative-work copyright
Toggle Application of derivative-work copyright subsection
Originality requirement
Lawful works requirement
Liability of derivative-work
Toggle Liability of derivative-work subsection
Fixation requirement
The fair use defense in derivative work cases
Toggle The fair use defense in derivative work cases subsection
Transformativeness
Examples of derivative works under U.S. law
See also
References
Bibliography
External links
Derivative work

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A work can be the source to many different types of derivative works that differ in
type from the original. In this illustration a comic book is the source to for
example merchandise, a video game, a magazine and a film.

Marcel Duchamp's 1919 piece L.H.O.O.Q., a derivative work based on the Mona Lisa.

Artists copying the "Mona Lisa". The original picture is in the public domain, but
both the derivative work (the copy of the picture) and this photograph would
attract their own copyright. The artists and photographer were working for the
copyright holder, who has released the rights under a "CC BY-SA 2.0" license.
In copyright law, a derivative work is an expressive creation that includes major
copyrightable elements of a first, previously created original work (the underlying
work). The derivative work becomes a second, separate work independent from the
first. The transformation, modification or adaptation of the work must be
substantial and bear its author's personality sufficiently to be original and thus
protected by copyright. Translations, cinematic adaptations and musical
arrangements are common types of derivative works.

Most countries' legal systems seek to protect both original and derivative works.
[1] They grant authors the right to impede or otherwise control their integrity and
the author's commercial interests. Derivative works and their authors benefit in
turn from the full protection of copyright without prejudicing the rights of the
original work's author.

Definition
Berne
The Berne Convention for the Protection of Literary and Artistic Works, an
international copyright treaty, stipulates that derivative works shall be protected
although it does not use the term, namely that "Translations, adaptations,
arrangements of music and other alterations of a literary or artistic work shall be
protected as original works without prejudice to the copyright in the original
work".[2][better source needed]

United States

In U.S. law, this derivative work of a chest radiograph (which is in the Public
Domain) is copyrightable because of the additional graphics. Yet the chest
radiograph component of the work is still in the Public Domain.
An extensive definition of the term is given by the United States Copyright Act in
17 U.S.C. § 101:

A "derivative work" is 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".

17 U.S.C. § 103(b) provides:

The copyright in a compilation or derivative work extends only to the material

contributed by the author of such work, as distinguished from the preexisting
material employed in the work, and does not imply any exclusive right in the
preexisting material. The copyright in such work is independent of, and does not
affect or enlarge the scope, duration, ownership, or subsistence of, any copyright
protection in the preexisting material.

17 U.S.C. § 106 provides:

Subject to sections 107 through 122, the owner of copyright under this title has
the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies...;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies...of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending....
US Copyright Office Circular 14: Derivative Works notes that:

A typical example of a derivative work received for registration in the Copyright

Office is one that is primarily a new work but incorporates some previously
published material. This previously published material makes the work a derivative
work under the copyright law. To be copyrightable, a derivative work must be
different enough from the original to be regarded as a "new work" or must contain a
substantial amount of new material. Making minor changes or additions of little
substance to a preexisting work will not qualify the work as a new version for
copyright purposes. The new material must be original and copyrightable in itself.
Titles, short phrases, and format, for example, are not copyrightable.

The statutory definition is incomplete and the concept of derivative work must be
understood with reference to explanatory case law. Three major copyright law issues
arise concerning derivative works: (1) what acts are sufficient to cause a
copyright-protected derivative work to come into existence; (2) what acts
constitute copyright infringement of a copyright in a copyright-protected work; and
(3) in what circumstances is a person otherwise liable for infringement of
copyright in a copyright-protected derivative work excused from liability by an
affirmative defense, such as first sale or fair use?

European Union
French law prefers the term "œuvre composite" ("composite work") although the term
'"œuvre dérivée" is sometimes used. It is defined in article L 113-2, paragraph 2
of the Intellectual Property Code as "new works into which pre-existing work [is
incorporated], without the collaboration of its author".[3] The Court of Cassation
has interpreted this statute as requiring two distinct inputs at different points
in time.[4]

The Court of Justice of the European Union in 2010 decided on a matter of

derivative works in Systran v. European Commission (Case T-19/07[5]). However, it
was overturned in 2013[6] based on the conclusion that the case did not fall within
the General Court's jurisdiction, after concluding that the dispute had been of a
contractual nature, instead of a non-contractual one.

Canada
Though Canadian copyright law does not explicitly define "derivative work", the
Copyright Act of Canada does provide the following generally agreed-upon[7][8]
examples of what constitutes a derivative work in section 3:

"copyright"...includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-
dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to

convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound
recording, cinematograph film or other contrivance by means of which the work may
be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce,
adapt and publicly present the work as a cinematographic work

In Théberge v. Galerie d'Art du Petit Champlain Inc., [2002] 2 S.C.R. 336, 2002 SCC
34, the Supreme Court of Canada clarified the statutory recognition of derivative
works extended only to circumstances where there was production and multiplication,
i.e. reproduction. Where there is no derivation, reproduction, or production of a
new and original work which incorporates the artist's work, there is no violation
of the Copyright Act.

Significance, history and social context

Derivative works represent the majority of the human cultural, scientific and
technological heritage, as exemplified by the proverb about "standing on the
shoulders of giants."[9] The number of derivative works has been adversely impacted
by the introduction of the copyright law, which made them illegal in numerous
circumstances, and positively by the spread of the copyleft ethos in the last 20th
and early 21st century.[10][11][12]: 62

Application of derivative-work copyright

Originality requirement
For copyright protection to attach to a later, allegedly derivative work, it must
display some originality of its own. It cannot be a rote, uncreative variation on
the earlier, underlying work. The latter work must contain sufficient new
expression, over and above that embodied in the earlier work for the latter work to
satisfy copyright law's requirement of originality.

Although serious emphasis on originality, at least so designated, began with the

Supreme Court's 1991 decision in Feist v. Rural, some pre-Feist lower court
decisions addressed this requirement in relation to derivative works. In Durham
Industries, Inc. v. Tomy Corp.[13] and earlier in L. Batlin & Son, Inc. v. Snyder.
[14] the Second Circuit held that a derivative work must be original relative to
the underlying work on which it is based. Otherwise, it cannot enjoy copyright
protection and copying it will not infringe any copyright of the derivative work
itself (although copying it may infringe the copyright, if any, of the underlying
work on which the derivative work was based).

The Batlin case rested on the copyrightability of an "Uncle Sam" toy bank, first
copyrighted in 1886. These toys have Uncle Sam's extended arm and outstretched hand
adapted to receive a coin; when the user presses a lever, Uncle Sam appears to put
the coin into a carpet bag. One maker of these banks, Jeffrey Snyder, had filed a
copyright on such a bank in 1975, planning to import them for the American
Bicentennial. Shortly thereafter, another company, L. Batlin & Sons, Inc., also
began making a very similar toy bank which was based on Snyder's version (and not,
incidentally, on the 19th century original). When the latter attempted to import
the toy banks, the US Customs service notified them that they appeared to be
infringing on Snyder's copyright, and would not allow the toy banks to be imported.
Batlin then got an injunction against Snyder to deny the recording of his copyright
and allowing them to import their banks. On appeal to the Second Circuit Court,
Snyder took great pains to demonstrate how his banks varied in size and shape from
the 19th century original, arguing that his banks, though similar to the older
work, differed in a number of significant ways and warranted protection under a new
copyright. However, his appeal was denied and the injunction against Snyder's
copyright upheld (six members of the court voted to deny, the other three filing a
dissenting opinion). Much of this decision focused on the fact that nearly all of
the alterations in Snyder's version were made solely to allow the object to be more
easily manufactured in plastic rather than metal, and therefore were functional,
not artistic or creative.[15][16] "To extend copyrightability to minuscule
variations would simply put a weapon for harassment in the hands of mischievous
copiers intent on appropriating and monopolizing public domain work." The issue was
not whether or not Batlin's bank was a copy of Snyder's— it undoubtedly was— but
whether or not Snyder could claim copyright protection, which the court decided he
could not.
In the subsequent Durham case, the court applied the same principle in a suit
between two different Disney toy licensees in which one licensee claimed that the
other had pirated his Mickey Mouse, Donald Duck and Pluto. Durham conceded that in
making these toys it used Tomy's Disney figures as models. That was not
determinative. The court said that "the only aspects of Tomy's Disney figures
entitled to copyright protection are the non-trivial, original features, if any,
contributed by the author or creator of these derivative works." But Tomy's toys
reflected "no independent creation, no distinguishable variation from preexisting
works, nothing recognizably the author's own contribution that sets Tomy's figures
apart from the prototypical Mickey, Donald, and Pluto, authored by Disney and
subsequently represented by Disney or its licensees in a seemingly limitless
variety of forms and media." Because the court considered that "it is clear that
the originality requirement imposed by the Constitution and the Copyright Act has
particular significance in the case of derivative works based on copyrighted
preexisting works," it denied relief and dismissed the claim. Thus the law is clear
that a derivative work is protectable only to the extent that it embodies original
expression. Its non-original aspects are not copyright-protectable (what is loosely
called "uncopyrightable").

In both of these cases, the defendants were held not to be liable for copyright
infringement, even though they presumably copied a considerable amount from the
plaintiff's work. They were not liable because the plaintiff did not enjoy
copyright protection. The plaintiffs' works lacked enough originality to acquire
copyright protection of their own. They were too close to the original works on
which they were based.

Lawful works requirement

Copyright ownership in a derivative work attaches only if the derivative work is
lawful, because of a license or other "authorization." The U.S. Copyright Office
says in its circular on derivative works:

In any case where a copyrighted work is used without the permission of the
copyright owner, copyright protection will not extend to any part of the work in
which such material has been used unlawfully.[17][18]

The courts have so far addressed little attention to the issue of lawful (i.e., not
unlawful) use without authorization, as in fair-use cases such as the Pretty Woman
case. Recently, however, in Keeling v. Hars,[19] the Second Circuit held that, if
the creator of an unauthorized work stays within the bounds of fair use and adds
sufficient original content, the original contributions in such an unauthorized
derivative work are protectable under the Copyright Act. In that case, the
plaintiff created a parody stage adaptation of a motion picture, without
authorization.

Liability of derivative-work
This issue sometimes arises in the context of the defendant purchasing a copy of a
picture or some other work from the copyright owner or a licensee and then
reselling it in different context. For example, pictures from greeting cards might
be affixed to tiles or one kind of textile product might be turned into another
that can be sold at a higher price. In Lee v. A.R.T. Co., (the Annie Lee case), the
defendant affixed the copyright owner's copyright-protected note cards and small
lithographs to tiles and then resold them.[20] The original art was not changed or
reproduced, only bonded to ceramic and sold. The court held that this act was not
original and creative enough to rise to the level of creating a derivative work,
but effectively similar to any other form of display or art frame.[21]

Distribution rights differ from reproduction rights. While the first-sale doctrine
entitles the copyright holder to begin the distribution chain of a copyrighted work
- by selling note cards, for instance, or giving them away - it does not permit the
copyright holder to control what is done with the item after it is distributed.
Unless there is a separate contract between the parties, the person who owns the
object has the right to give it away or resell it themself. In the case of Lee v.
A.R.T., since bonding the cards to ceramic did not create a derivative work, A.R.T.
Co. was legally within their rights to resell the cards in such a fashion.

When the defendant's modification of the plaintiff's work is de minimis, too

insubstantial to "count", there is no infringing preparation of a derivative work.
So long as there is no derivative work, there is no infringement—since no conduct
that the Copyright Act forbids has occurred.

Fixation requirement
In a House Report,[22] Congress said:

The exclusive right to prepare derivative works, specified separately in clause (2)
of section 106, overlaps the exclusive right of reproduction to some extent. It is
broader than that right, however, in the sense that reproduction requires fixation
in copies or phonorecords, whereas the preparation of a derivative work, such as a
ballet, pantomime, or improvised performance, may be an infringement even though
nothing is ever fixed in tangible form.

The 9th Circuit, however, has resisted this expansive view of liability for
derivative works by imposing its own quasi-fixation requirement. In Micro Star v.
FormGen Inc.[23] Judge Kozinski wrote:

To narrow the statute to a manageable level, we have developed certain criteria a

work must satisfy in order to qualify as a derivative work. One of these is that a
derivative work must exist in a "concrete or permanent form,"....The requirement
that a derivative work must assume a concrete or permanent form was recognized
without much discussion in Galoob.

The fair use defense in derivative work cases

Even if a work is found to be an unauthorized derivative work, an alleged infringer
can escape liability via the defense of fair use. For example, in Campbell v.
Acuff-Rose Music, Inc., the Supreme Court found that although a parody of the song
"Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was
still available as a complete defense. This case marked the Supreme Court's
pointing to transformativeness as a major clue to application of the fair use
defense to derivative works.

The defense of fair use has become very important in computer- and Internet-related
works. Two 1992 Ninth Circuit decisions are illustrative.

In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,[24] the appellate court
held that it was a fair use for owners of copies of video games, such as Super
Mario Bros., to use Galoob's product the Game Genie to customize the difficulty or
other characteristics of the game by granting a character more strength, speed, or
endurance. Nintendo strongly opposed Galoob's product, allegedly because it
interfered with the maintenance of the "Nintendo Culture," which Nintendo claimed
was important to its marketing program.[25] The court held, among other things,
that the fair use defense shielded Galoob's conduct. The court said that "a party
who distributes a copyrighted work cannot dictate how that work is to be enjoyed.
Consumers may use ... a Game Genie to enhance a Nintendo Game cartridge's
audiovisual display in such a way as to make the experience more enjoyable."

In Sega Enterprises, Ltd. v. Accolade, Inc.,[26] the court excused Accolade from
copyright infringement liability on fair use grounds. Nintendo and Sega produced
video game consoles. Each stored the games in plastic cartridges that provided game
data to the consoles. By way of analogy, the Sega hardware console's "platform"
differed from Nintendo's, as a Macintosh platform differs from that of a PC. Hence,
a video game cartridge that works on one system does not work on the other. Sega
and Nintendo sought to "license" access to their hardware platforms, and each
company developed software "locks" to keep out cartridges that did not have the
proper "key." Accolade sought a license from Sega for its key, but negotiations
broke down over price. Accolade then decided to reverse engineer Sega's lock and
key system. To do so, it had to download (copy) all of the computer code from
Sega's product and disassemble it (translate it from machine code into human-
readable assembly). Accolade succeeded and began to market new video games that it
independently wrote, which were capable of being operated in Sega consoles. This
led to copyright infringement litigation, in which Sega alleged that the
downloading was improper copying (reproduction) of Sega's code. The court held that
Sega was trying to use the copyright in its computer code to maintain a monopoly
over the sale of video games, to which it was not legally entitled. Accolade
downloaded the computer code only to ascertain how the lock worked, so that it
could make a key that would permit its games to work in Sega consoles. The court
held that such a use was fair use: "We conclude that where disassembly is the only
way to gain access to the ideas and functional elements embodied in a copyrighted
computer program and where there is a legitimate reason for seeking such access,
disassembly is a fair use of the copyrighted work, as a matter of law."[27]
However, since the passage of the anti-circumvention statutes contained in the
DMCA, further court cases involving the fair-use defense of such activities have
yet[citation needed] to be actually litigated.

Transformativeness
Main article: Transformativeness
A crucial factor in current legal analysis of derivative works is
transformativeness, largely as a result of the Supreme Court's 1994 decision in
Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of
transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman"
involved in the Campbell case. In parody, as the Court explained, the
transformativeness is the new insight that readers, listeners, or viewers gain from
the parodic treatment of the original work. As the Court pointed out, the words of
the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman]
song" is.

The modern emphasis of transformativeness in fair use analysis stems from a 1990
article by Judge Pierre N. Leval in the Harvard Law Review, "Toward a Fair Use
Standard",[28] which the Court quoted and cited extensively in its Campbell
opinion. In his article, Leval explained the social importance of transformative
use of another's work and what justifies such a taking:

I believe the answer to the question of justification turns primarily on whether,

and to what extent, the challenged use is transformative. The use must be
productive and must employ the quoted matter in a different manner or for a
different purpose from the original. ...[If] the secondary use adds value to the
original--if the quoted matter is used as raw material, transformed in the creation
of new information, new aesthetics, new insights and understandings--this is the
very type of activity that the fair use doctrine intends to protect for the
enrichment of society.

Transformative uses may include criticizing the quoted work, exposing the character
of the original author, proving a fact, or summarizing an idea argued in the
original in order to defend or rebut it. They also may include parody, symbolism,
aesthetic declarations, and innumerable other uses.

The concept, as Leval and the Campbell Court described it, developed in relation to
fair use of traditional works: literary works, musical works, and pictorial works.
But recently courts have extended this rationale to Internet and computer-related
works. In such cases, as illustrated by Kelly v. Arriba Soft Corporation[29] and
Perfect 10, Inc. v. Amazon.com, Inc.,[30] the courts find a use (such as that of
thumbnails in an image search engine, for indexing purposes) transformative because
it provides an added benefit to the public, which was not previously available and
might remain unavailable without the derivative or secondary use. The Ninth Circuit
Court explained this in the Perfect 10 case:

Google's use of thumbnails is highly transformative. In Kelly we concluded that

Arriba's use of thumbnails was transformative because "Arriba's use of the images
served a different function than Kelly's use — improving access to information on
the Internet versus artistic expression." Although an image may have been created
originally to serve an entertainment, aesthetic, or informative function, a search
engine transforms the image into a pointer directing a user to a source of
information. Just as a "parody has an obvious claim to transformative value"
because "it can provide social benefit, by shedding light on an earlier work, and,
in the process, creating a new one," a search engine provides social benefit by
incorporating an original work into a new work, namely, an electronic reference
tool. Indeed, a search engine may be more transformative than a parody because a
search engine provides an entirely new use for the original work, while a parody
typically has the same entertainment purpose as the original work.

…In conducting our case-specific analysis of fair use in light of the purposes of
copyright, we must weigh Google's superseding and commercial uses of thumbnail
images against Google's significant transformative use, as well as the extent to
which Google's search engine promotes the purposes of copyright and serves the
interests of the public. Although the district court acknowledged the "truism that
search engines such as Google Image Search provide great value to the public," the
district court did not expressly consider whether this value outweighed the
significance of Google's superseding use or the commercial nature of Google's use.
The Supreme Court, however, has directed us to be mindful of the extent to which a
use promotes the purposes of copyright and serves the interests of the public.

…We conclude that the significantly transformative nature of Google's search

engine, particularly in light of its public benefit, outweighs Google's superseding
and commercial uses of the thumbnails in this case. … We are also mindful of the
Supreme Court's direction that "the more transformative the new work, the less will
be the significance of other factors, like commercialism, that may weigh against a
finding of fair use."

The Ninth Circuit's treatment of transformativeness and fair use in the Arriba Soft
and Perfect 10 cases illustrates different data points on the copyright
infringement spectrum, at least with respect to transformativeness and fair use.
Arriba Soft was a relatively polar case. The harm to Kelly, the copyright owner,
was negligible; it was hardly more than hurt feelings, because as the Ninth Circuit
said in its opinion – "Arriba's creation and use of the thumbnails [the derivative
work] does not harm the market for or value of Kelly' s images." On the other hand,
the court found that Arriba's use benefited the public: "Arriba's use of the images
serves a different function than Kelly's use — improving access to information on
the internet versus artistic expression." The balance thus tilted strongly in
Arriba's favor. The foregoing analysis in this case thus made the Ninth Circuit to
be the first court to make the equation highly beneficial to public =
transformative, and as the Supreme Court explained in Campbell, the more
transformative a derivative use the more likely the use is to be a fair use.

The Campbell Court recognized that the balance may not always be one-sided, as it
was in Campbell itself and in Arriba Soft. In the Perfect 10 case the interests
were more evenly balanced, for the first time in a derivative work case involving
new information technology. Both Google and Perfect 10 had legitimate interests at
stake and support for their respective positions. Thus, there was a finding that
"Google's wide-ranging use of thumbnails is highly transformative: their creation
and display is designed to, and does, display visual search results quickly and
efficiently to users of Google Image Search." But Google's use had some commercial
aspects and was claimed to impair P10's commercial interests. Yet, on balance the
Ninth Circuit found that the transformativeness outweighed the other fair use
factors because "Google has provided a significant benefit to the public" in
facilitating image searches by means of thumbnail images. This opinion provided a
second instance of the "beneficial=transformative" equation described in the
preceding paragraph (from the Arriba Soft case).

Screenshot of Half.com pop-up ad over Amazon's Web page c. 2008

The use of pop-up advertising, in which third-party advertisements pop up on a
competitor's Web page and change its appearance to allegedly create a derivative
work,[31] may present transformativeness issues. The proponents of such pop-ups
(the defendants in infringement litigation) argue that they provide the public with
additional information about making buying decisions (particularly in the form of
price comparisons), but the opponents (the plaintiffs in these cases) argue that
the defendants' conduct adversely affects the Web page proprietor's interest in the
"integrity" of its Web page and its investment interest in creating and maintaining
the page.[32]

An example of promotional advertising for a pop-up company, illustrating various

pop-up techniques for changing the appearance of another firm's Web page is shown
in this Flash Archived 19 June 2009 at the Wayback Machine.[33]

Little attention has been paid to the balancing of the interests at stake in
derivative work copyright disputes where conflicting interests are present. In the
Perfect 10 and Castle Rock cases, however, the courts appeared to have recognized
that some conflict existed, but they finessed the balancing task by finding one
side or the other's interest negligible, so that no serious work had to be done in
gauging the balance. although several courts have found no copyright infringement
for one reason or another. In an analogous area of copyright law, a solution
reached was to permit the use challenged as infringement, but to require payment of
a reasonable royalty.[34]

Examples of derivative works under U.S. law

Graphic from the United States Copyright Office, 1959, giving examples of
derivative works.
The most famous derivative work in the world has been said to be L.H.O.O.Q.,[35]
also known as the Mona Lisa With a Moustache. Generations of U.S. copyright law
professors — since at least the 1950s — have used it as a paradigmatic example.
Marcel Duchamp created the work by adding, among other things, a moustache, goatee,
and the caption L.H.O.O.Q. (letters which phonetically resemble the phrase in
French "She is hot in the ass") to Leonardo's iconic work. These few seemingly
insubstantial additions were highly transformative because they incensed
contemporary French bourgeoisie[36] by mocking their cult of "Jocondisme,"[37] at
that time said to be "practically a secular religion of the French bourgeoisie and
an important part of their self image." Duchamp's defacement of their icon was
considered "a major stroke of épater le bourgeois." Thus it has been said that the
"transformation of a cult icon into an object of ridicule by adding a small quantum
of additional material can readily be deemed preparation of a derivative work."[38]
A parodic derivative work based on Duchamp's parodic derivative work is shown at
this location Archived 2 August 2020 at the Wayback Machine.

The mockery of "Oh, Pretty Woman," discussed in Campbell v. Acuff-Rose Music, Inc.,
is a similar example of transforming a work by showing it in a harsh new light or
criticizing its underlying assumptions. Because of the parody's transformativeness,
the Supreme Court found the derivative work a fair use.

Trivia books based on TV shows, such as Seinfeld, are considered derivative works,
for purposes of infringement liability, at least if they incorporate a substantial
amount of copyright-protected content from the TV episodes.[39] In Castle Rock the
court found that any transformative purpose possessed in the derivative work was
"slight to non-existent." Accordingly, the court held that defendants had prepared
an infringing derivative work.

A 2007 lawsuit, CBS Operations v. Reel Funds International, ruled that television
series that have some episodes lapse into the public domain can be classified as
derivative works and subject to indirect copyright accordingly. The lawsuit
centered around 16 episodes of The Andy Griffith Show from the show's third season
that had lapsed into the public domain in 1989; CBS successfully argued that
because all of the episodes from the show's first two seasons were still under
valid copyright, that CBS still held copyright on the characters used in those
episodes and could block a public domain distributor from selling DVDs with those
episodes.[40][41]

The musical West Side Story, is a derivative work based on Shakespeare's Romeo and
Juliet, because it uses numerous expressive elements from the earlier work.[42]
However, Shakespeare's drama Romeo and Juliet is also a derivative work that draws
heavily from Pyramus and Thisbe and other sources. Nevertheless, no legal rule
prevents a derivative work from being based on a work that is itself a derivative
work based on a still earlier work — at least, so long as the last work borrows
expressive elements from the second work that are original with the second work
rather than taken from the earliest work. The key is whether the copied elements
are original and expressive (not merely conventional or mise en scène); if that is
so, the second or derivative work is independently subject to copyright protection,
and if that is not, the second work (if unauthorized) may infringe the first, but
it is not independently copyrightable.[43]

Pop-up advertising provides derivative works that can be transformative,[44] in

that they provide the public with new functionality not previously offered — they
may provide comparative price information, for example.[45] Yet, pop-ups may also
impair interests of the proprietors of Web pages subjected to them. For example,
the Half.com pop-up ad shown above left informs the public as to price competition
between Half.com and Amazon.com. But the derivative-work version of Amazon's web
page partially covers up Amazon's advertising (at least temporarily) and adversely
affects Amazon's investment interest in the preparation and maintenance of its web
page. This may present a more difficult case of balancing interests than that which
the court faced in Arriba Soft or Perfect 10.

The gif animation parody of Duchamp's work Archived 2 August 2020 at the Wayback
Machine referred to above in this section, and pop-up advertising are examples of
derivative works that became possible only with the advent of recent technology.
The last sentence of section 101's definition of derivative work (at the beginning
of section 1.1 of this Article) defines annotations as derivative works.
Annotations of other works have long existed, but new technology permits the
creation of new forms of annotation. An illustration of such a new-technology
annotation is provided in this example of an annotation of Chaucer's Prologue
Archived 1 February 2009 at the Wayback Machine to the Canterbury Tales, in which a
small pop-up window provides the definition of a difficult word when the cursor is
moused over the word.[46]

The Internet Archive had created an archive of scans of books which it had physical
copies of, which it initially lent out digitally in a controlled manner. However,
during the COVID-19 pandemic, the Internet Archive expanded the availability of the
archives with an initiative it called the National Emergency Library, during which
they removed the waitlists on the books that limited the number of people who could
use them at the same time. Four major publishers filed suit against the Archive,
and the court ruled in the publishers' favor in March 2023, declaring that the
unrestricted access to the National Emergency Library infringed their copyrights.
According to the court, the book scans were derivative works and the expansive
National Emergency Library concept was unsupported by fair use, so it required
permission from the book publishers that the Internet Archive did not receive.[47]

See also
Authorship
Plagiarism
Copyright Act of 1976
Copyright aspects of hyperlinking and framing
Derivative Work Controversy in Hong Kong
Galoob v. Nintendo
Intellectual property
Merchandising
Pastiche
Patent
Threshold of originality
Trademark
Trade secret
Work for hire
Creative Commons
References
In the US, 17 U.S.C. § 106(2) protects derivative works. For the UK, see UK
Copyright Service, "Fact Sheet P-22: Derivative works" Archived 21 April 2017 at
the Wayback Machine (Last updated: 10 December 2012). French law protects
derivative works as "œuvres composites" or as "une œuvre dérivée." See Article L.
112–13 of the French Intellectual Property Code (CODE DE LA PROPRIÉTÉ
INTELLECTUELLE, Art. L.112–13). The German Copyright Act, UrhG, sec. 3, 23, and 69c
No. 2, protects translations (Übersetzungen) and other adaptations (andere
Bearbeitungen), as well as other types of elaborations such as dramatizations,
orchestrations, and new versions of works. In Spain, Art.11 TRLPI grants protection
to derivative works such as translations, adaptations, revisions, musical
arrangements and any transformation of a literary, artistic, or scientific work.
Art. 4 of the Italian Copyright Act affords protection to creative elaborations of
works, such as translations in another language, transformations from a literary or
artistic form into another one, modifications or additions that constitute a
substantial remake of the original work, adaptations, "reductions" (intended as
shorter versions of protected works), compendia, and variations which do not
constitute original works. In the Netherlands, Article 10-2 of the Dutch Copyright
Act states that reproductions in a modified form of a work of literature, science
or art, such as translations, musical arrangements, adaptations, and other
elaborations, can be protected as original, without prejudice to the primary work.
The Berne Convention, Art. 2, § 3 states: "Translations, adaptations, arrangements
of music and other alterations of a literary or artistic work shall be protected as
original works without prejudice to the copyright of the original work." This
provision is incorporated into the TRIPS Agreement. For a comparison of different
countries' regimes for protecting derivative works, see Daniel Gervais, The
Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs, 15
VANDERBILT J. OF ENT. AND TECH. LAW 785 2013; Institute Archived 27 December 2016
at the Wayback Machine for Information Law, Univ. of Amsterdam, The digitisation of
cultural heritage: originality, derivative works, and (non) original photographs.
Berne Convention for the Protection of Literary and Artistic Works, Paris Act of
July 24, 1971, as amended on September 28, 1979 Article 2, paragraph 3. Accessed 25
October 2013
Code de la Propriété Intellectuelle, Book I, Title I, Chapter III, Article L 113-2
(in French) "Est dite composite l'oeuvre nouvelle à laquelle est incorporée une
oeuvre préexistante sans la collaboration de l'auteur de cette dernière."
Bellefonds (2002:147,148)
"CURIA - Documents". curia.europa.eu.
"CURIA - Documents". curia.europa.eu.
"Supreme Court of Canada - Decisions - Théberge v. Galerie d'Art du Petit
Champlain inc". Archived from the original on 30 April 2008. Retrieved 24 May 2008.
examples of what might be called derivative works [are] listed in s. 3(1)(a) to (e)
of our Act
"Creative Commons Attribution 2.5 Canada Legal Code". Retrieved 24 May 2008.
Derivative works include: ...
Scotchmer, Suzanne (March 1991). "Standing on the Shoulders of Giants: Cumulative
Research and the Patent Law". Journal of Economic Perspectives. 5 (1): 29–41.
doi:10.1257/jep.5.1.29. ISSN 0895-3309.
Grassmuck, Volker (2011). "Towards a New Social Contract". In Guibault, Lucie;
Angelopoulos, Christina (eds.). Towards a New Social Contract: Free-Licensing into
the Knowledge Commons. From Theory to Practice. Amsterdam University Press. pp. 21–
50. ISBN 978-90-8964-307-0. JSTOR j.ctt46mtjh.4. Retrieved 21 November 2020. {{cite
book}}: |work= ignored (help)
"I Borrow, You Steal: Plagiarism through centuries and across art forms". Logos.
22 (4): 29–40. 1 January 2011. doi:10.1163/095796512X625436. ISSN 0957-9656.
Dariusz Jemielniak; Aleksandra Przegalinska (18 February 2020). Collaborative
Society. MIT Press. ISBN 978-0-262-35645-9.
630 F.2d 905 (2d Cir, 1980), available at http://www.altlaw.org/v1/cases/551553
Archived 12 October 2008 at the Wayback Machine and http://cases.justia.com/us-
court-of-appeals/F2/630/905/238194/
536 F.2d 486 (2d Cir.) (en banc), available at
http://www.altlaw.org/v1/cases/554959 Archived 21 December 2008 at the Wayback
Machine and "CoolCopyright | Chapter 3 | L. Batlin & Son, Inc v. Snyder". Archived
from the original on 5 September 2008. Retrieved 15 November 2008.
Snyder, 536 F.2d at 488.
For a visual comparison, see http://coolcopyright.com/contents/chapter-2/l-batlin-
son-v-snyder
U.S. Copyright Office, Copyright in Derivative Works and Compilations. To the same
effect, see Gracen v. Bradford Exch., 698 F.2d 300, 302 (7th Cir. 1983)
(dictum);Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27, 34 n.6 (2d Cir.
1982)(dictum); Pickett v. Prince, 52 F. Supp. 2d 893, 906 (N.D. Ill. 1999).
Based on the Copyright Office's statement, it may appear that the Office will not
register a copyright in a parody such as that involved in the Pretty Woman case,
even though the Supreme Court suggested strongly that the preparation of that
derivative work was lawful fair use, albeit unauthorized. The Court noted that
parodies are usually unauthorized works. However, the Office states in its
Compendium of its Practices (3d ed.), § 313.6(B):
"Ordinarily, the Office will not examine the preexisting material that appears in a
derivative work, a compilation, or a collective work to determine whether that
material is protected by copyright or whether it has been used in a lawful manner.
However, the registration specialist may communicate with the applicant if the
preexisting material has not been excluded from the claim and it is reasonably
clear that the claimant may not own the copyright in that material, such as a mix
tape containing a compilation of well-known sound recordings. The Office also may
question derivative claims that appear to be unlawful and that are inseparable or
intertwined with an underlying work, such as stage directions for a dramatic work."

For further discussion, see Rebecca Tushnet's 43(B)log, Thomas the Tank Engine of
free expression (Feb, 21, 2008).

2015 U.S. App. LEXIS 19085 (2d Cir. Oct. 30, 2015).
Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997).
See also Scarves by Vera, Inc. v. United Merchants & Mfrs., Inc., 173 F. Supp. 625
(S.D.N.Y. 1959).(no infringement where defendant sewed together towels with
copyright-protected design imprinted on them, so as to make hand bags).
H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 62 (1976)
Micro Star v. FormGen Inc., 154 F.3d 1107 (9th Cir. 1998).
964 F.2d 965 (9th Cir. 1992)
See Richard H. Stern, The Game Genie Case: Copyright in Derivative Works versus
Users' Rights, [1992] 3 ENTERTAINMENT L. REV. 104
"Sega v. Accolade". digital-law-online.info.
977 F.2d at 1527-28.
"Leval on Fair Use". docs.law.gwu.edu. Archived from the original on 28 August
2008. Retrieved 14 November 2008.
336 F.3d 811 (2003).
487 F.3d 701 (9th Cir. 2007).
See discussion of this point at George Archived 19 June 2009 at the Wayback
Machine Washington Law School Archived 2 November 2014 at the Wayback Machine. In
Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 734 (E.D. Mich. 2003), the
district court rejected this argument, as did the court in 1-800 Contacts, Inc. v.
WhenU.com, Inc., 69 U.S.P.Q.2d 1337 (S.D.N.Y. 2003). In both cases, the courts
stressed the transitory nature of the accused conduct and insisted that the
supposed derivative works were not "fixed" long enough to be cognizable under
copyright law. As yet, there is no court of appeals precedent on this issue.
See cases cited in preceding note.
See cases on pop-up advertising collected at
http://docs.law.gwu.edu/facweb/claw/ch6c2.htm Archived 19 June 2009 at the Wayback
Machine and at [1] Archived 2 November 2014 at the Wayback Machine
[citation needed] [Sup Ct decision on motion picture use of renewed copyright]
"L.H.O.O.Q.-Internet-Related Derivative Works". Docs.law.gwu.edu. Archived from
the original on 19 August 2018. Retrieved 5 August 2013.
See, for example, Debbie Lewer, Post-Impressionism to World War II (pub. Blackwell
Pub. 2005), at pp. 223-24, explaining Walter Benjamin's essay, "The Work of Art in
the Age of Mechanical Reproduction," as first conceptualizing "what Marcel Duchamp
had already shown in 1919 in L.H.O.O.Q. by iconoclastically altering a reproduction
of the Mona Lisa ... Marcel Duchamp succeeded in destroying what Benjamin called
the traditional art work's aura, that aura of authenticity and uniqueness"
See, for example, Andreas Huyssen, After the Great Divide: "It is not the artistic
achievement of Leonardo that is mocked by moustache, goatee, and obscene allusion,
but rather the cult object that the Mona Lisa had become in that temple of
bourgeois art religion, the Louvre." (Quoted in Steven Baker, The Fiction of
Postmodernity, p.49
"L.H.O.O.Q.- Internet-Related Derivative Works". docs.law.gwu.edu. Archived from
the original on 19 August 2018. Retrieved 4 June 2007.
See Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (2d
Cir. 1998).
"Winston.com". Archived from the original on 31 August 2013.
"CBS Operations Inc v. Reel Funds International Inc". gpo.gov.
In Campbell v. Acuff-Rose Music, Inc., the Supreme Court said that the question is
whether the second work "adds something new, with a further purpose or different
character, altering the first with new expression, meaning, or message; it asks, in
other words, whether and to what extent the new work is 'transformative.' "
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
See the Batlin and Durham cases, discussed earlier in the section When does
derivative-work copyright apply?.
For a more detailed discussion of pop-up and transformativeness, see the Wikipedia
article on this subject, which has links to promotional material by companies
engaging in this business, arguing the benefits of their services.
Providing consumers with new functionality is an indicium of transformativeness
and thus of a fair use that may insulate a copyist from infringement liability. See
discussion of Perfect 10 case earlier in this section and its equation highly
beneficial to public = transformative.
This is taken out of its context of a description of a notional derivative-work
copyright infringement suit between Chaucer and a Professor Annotator, found at
L.H.O.O.Q.—Internet-Related Derivative Works Archived 16 April 2008 at the Wayback
Machine.
Hollister, Sean (25 March 2023). "The Internet Archive has lost its first fight to
scan and lend e-books like a library". The Verge. Retrieved 25 March 2023.
Bibliography
Bellefonds, Xavier Linant de, Droits d'auteur et Droits Voisins, Dalloz, Paris,
2002
External links
US Copyright Act (Hosted by the Copyright Office)
US Copyright 'Derivative Works' (Hosted by the Copyright Office)
"Copyright in Derivative Works and Compilations" (Hosted by the U.S. Copyright
Office)
Frequently Asked Questions (and Answers) about Derivative Works Archived 9 July
2014 at the Wayback Machine, Chillingeffects.org
Article "Geek Law: Derivative Works[permanent dead link]" by Lawrence Rosen,
Linuxjournal.com
Article "DERIVATIVE WORK RIGHTS" by David M. Spatt, Artslaw.org
Article "L.H.O.O.Q.--Internet-Related Derivative Works Archived 19 August 2018 at
the Wayback Machine" by Richard H. Stern
Article "Derivative Works" by Sarah Ovenall, Funnystrange.com
vte
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