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.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" (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 for Information Law, Univ. of Amsterdam, The digitisation of cultural heritage: originality, derivative works, and (non) original photographs. 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".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
United States
An extensive definition of the term is given by the United States Copyright Act in : 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".
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.
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".Code de la Propriété Intellectuelle, Book I, Title I, Chapter III, Article L 113-2 "Est dite composite l'oeuvre nouvelle à laquelle est incorporée une oeuvre préexistante sans la collaboration de l'auteur de cette dernière." The Court of Cassation has interpreted this statute as requiring two distinct inputs at different points in time.Bellefonds (2002:147,148)
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). However, it was overturned in 2013 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 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., , 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." 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 late 20th and early 21st century.
The term derivative work was coined during the copyright law revision process in the United States that culminated in the Copyright Act of 1976. It was needed to simplify the language used in the prior copyright statute, which enumerated the types of adaptations of pre-existing works that could be copyrighted as new works.
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.630 F.2d 905 (2d Cir, 1980), available at http://www.altlaw.org/v1/cases/551553 and http://cases.justia.com/us-court-of-appeals/F2/630/905/238194/ and earlier in L. Batlin & Son, Inc. v. Snyder.536 F.2d 486 (2d Cir.) (en banc), available at http://www.altlaw.org/v1/cases/554959 and 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).