Jonah Patel
The concept of derivative works and their protection under copyright law is a complex and intriguing topic. It raises questions about the boundaries of artistic expression and the rights of original creators. When does a deviation from an original work become a new piece of art? What constitutes sufficient alteration to warrant a new copyright? These questions have been the subject of legal debates and court rulings, with varying interpretations across different countries. Understanding the legal definitions and protections surrounding derivative works is essential for artists, creators, and intellectual property enthusiasts alike.
| Characteristics | Values |
|---|---|
| Definition | A derivative work is a new work that is based on and derives from a pre-existing, copyrighted work. |
| Copyright protection | Derivative works are protected by copyright law, which grants authors the right to control the integrity and commercial interests of their work. |
| Originality | For copyright protection, a work must be original, independently created, and sufficiently creative. |
| Types of works | Derivative works can include translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, art reproductions, abridgments, and condensations. |
| Parody | A parody is a type of derivative work that modifies the original work to criticize or make fun of it. |
| Fair use | Fair use allows for the use of small portions of a copyrighted work for purposes such as reviews, scholarly works, or criticism. |
| Permission | It is best to obtain the original copyright holder's permission when creating a derivative work to avoid copyright infringement. |
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What You'll Learn
Derivative works and copyright law
Derivative works refer to copyrighted works that are based on other copyrighted works. In other words, they are new works that arise or derive from a previous work. The original work serves as a foundation for the creation of the derivative work, which introduces new elements or adaptations. This can include translations, musical arrangements, dramatizations, art reproductions, abridgments, or any other form in which the original work is recast, transformed, or adapted.
Derivative works can be created with the permission of the original copyright owner or by utilising works in the public domain. Obtaining permission from the copyright owner is generally a safer approach to ensure compliance with copyright law. In some cases, fair use doctrines may also apply, allowing limited use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, or research.
For a derivative work to receive copyright protection, it must add a sufficient amount of change or originality to the original work. This means that minor changes or additions of little substance are typically not enough to qualify the work as a new version for copyright purposes. The distinction between a derivative work and a new work varies based on the type of original work and the nature of the changes made. For instance, translating a written work into another language may be sufficient for certain types of works, while others may require a new medium or a substantial transformation of the content.
The concept of derivative works raises several copyright law issues. Firstly, it is important to determine what acts or changes are sufficient to create a copyright-protected derivative work. Secondly, understanding what constitutes copyright infringement of the original work is crucial. Lastly, there may be circumstances where a person is excused from liability for infringement due to affirmative defences, such as first sale or fair use. These issues can be complex and may require legal expertise to navigate.
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Originality and independent creation
The concept of derivative works is also important in copyright law. A derivative work is one that is based on or derived from a pre-existing copyrighted work. It involves transforming, adapting, or recasting the original work into a new form. While derivative works can be copyrighted, they must meet certain requirements, such as demonstrating originality and independent creation. This means that the new work should not be a mere copy or trivial variation of the original but should instead incorporate the author's own unique contributions.
In the case of Tomy's Disney figures, the court denied copyright protection due to a lack of independent creation. The toys were found to have no distinguishable variation from pre-existing Disney characters, and the alterations made were primarily for manufacturing purposes rather than artistic expression. This highlights the importance of independent creation in determining copyright eligibility.
To ensure compliance with copyright law, it is generally advisable to obtain permission from the original copyright holder or seek professional legal advice. This is especially important when creating derivative works, as the line between derivative works and infringement can be blurry. By understanding the principles of originality and independent creation, artists can protect their own work and respect the intellectual property rights of others.
In summary, originality and independent creation are fundamental aspects of copyright law. They ensure that creative works, whether original or derivative, possess a distinct character and contribute something unique to the artistic landscape. By recognizing and valuing these principles, artists can navigate the legal landscape, protect their rights, and foster innovation in their respective fields.
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Reviews and fair use
When it comes to reviews, fair use principles allow for the reproduction of small segments of the work being reviewed. For example, a book review may quote a few sentences from the book, or a music review may quote a few lines from a song. Similarly, a review of a visual artwork may involve reproducing the artwork to provide commentary or criticism. The rationale behind this is that the public benefits from the review being enhanced by the inclusion of the copyrighted material.
However, it is important to note that there are no hard-and-fast rules for determining fair use, and each case is evaluated individually. The key question is whether the material has been transformed by adding new expression or meaning, or whether it has simply been copied into another work. Courts also consider the economic impact of the use, including whether it hurts the current market for the original work or could cause substantial harm if it became widespread.
In some cases, the amount of copyrighted material used may be so small ("de minimis") that a fair use analysis is not even required. For example, in the film "Seven", several copyrighted photographs appeared briefly and were severely out-of-focus and unidentifiable. The court held that the use of these photographs was "de minimis" and did not require further analysis.
To be safe, it is always best to obtain permission from the original copyright holder or seek professional legal advice if you are unsure whether your use of copyrighted material constitutes fair use.
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Copyright ownership and employment
Copyright ownership gives the owner the exclusive right to use the work, and this right is generally afforded to the creator of the work. However, there are exceptions to this rule, particularly in the case of employment.
In the case of works created by employees, the employer owns the copyright if the work was created within the scope of the employee's job role. For example, if an employee of a company's training division created a training film using company resources, the company is the author for copyright purposes and owns the copyright, unless there is a signed contract stating otherwise. This is known as the 'work made for hire' rule.
The 'work made for hire' rule also applies to works created by independent contractors if they sign a written agreement stating that the work is 'made for hire'. However, for this rule to apply, the work must fall into one of eight categories of works that can be specially commissioned, including:
- A part of a larger literary work, such as an article or poem in an anthology
- A part of a motion picture or other audiovisual work
- A translation
- A supplementary work, such as an afterword or introduction
- A compilation
- An instructional text
- A test or answer material for a test
- An atlas
It is important to note that copyright ownership can be transferred, and these transfers can be recorded with the U.S. Copyright Office to protect the buyer. Additionally, authors or their heirs have the right to terminate any transfer of copyright ownership 35 to 40 years after it is made.
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Parody and satire
Parody involves imitating the style of an original work or an aspect of it (such as its theme, content, or author) for a comedic or satirical effect. It can be applied to various forms, including literature, music, theatre, film, and visual art. For example, "The Ritz Roll and Rock", a song performed by Fred Astaire in the movie Silk Stockings, parodies the rock and roll genre. In visual art, Banksy's street art parodies confront issues like political corruption, consumerism, and human rights abuses.
On the other hand, satire uses humour to critique or ridicule broader topics, such as contemporary politics, societal norms, or other topical issues, rather than specifically targeting an original work. Satire can stand on its own and does not necessarily require imitation or reference to an existing work. For instance, the movie The Great Dictator by Charlie Chaplin is a satirical comedy about Adolf Hitler and the Nazis, but it is not a parody of a specific original work.
In the context of copyright law, parody is generally considered fair use because it mimics an original work to make its point and has a claim to use the creation of its target. In contrast, satire may require justification for borrowing or referencing an original work since it can exist independently.
It is worth noting that not all parodies are created equally, and each case must be evaluated individually. For example, a song parody that borrows too much of the original composition and lyrics may be less likely to qualify as fair use.
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Frequently asked questions
A derivative work is a new creative piece that is based on or arises from a pre-existing, copyrighted work. This can include translations, musical arrangements, dramatizations, art reproductions, abridgments, and more.
Most countries' legal systems protect both original and derivative works. The authors of derivative works have full protection of copyright without prejudicing the rights of the original work's author. However, it is best to obtain permission from the original copyright holder or seek professional legal advice to avoid copyright infringement.
A work is generally considered original if it is independently created and sufficiently creative. Creativity can be demonstrated through artistic choices such as subject matter, composition, depiction, and use of design elements. Simple works, common symbols, and typography are typically not eligible for copyright protection.
