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311.2 The Originality Requirement for Derivative Works

 

311.2 The Originality Requirement for Derivative Works

 

Creating a derivative work requires “a process of recasting, transforming, or adapting ‘one or more preexisting works.'” H.R. REP. NO. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670. Thus, derivative works contain two distinct forms of authorship:

 

• The authorship in the preexisting work(s) that has been recast, transformed, or adapted within the derivative work; and

 

• The new authorship involved in recasting, transforming, or adapting those preexisting work(s).

 

The new authorship that the author contributed to the derivative work may be registered, provided that it contains a sufficient amount of original expression, meaning that the derivative work must be independently created and it must possess more than a modicum of creativity. See Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir. 1994).

 

As discussed in Section 308.1, independent creation means that the author(s) named in the application created the new or revised material that the applicant intends to register, “and this in turn means that the work must not consist of actual copying.” L. Batlin & Son, 536 F.2d at 490 (citation omitted).

 

The amount of creativity required for a derivative work is the same as that required for a copyright in any other work. “All that is needed to satisfy both the Constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.'” Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir. 1951) (citing Chamberlin v. Uris Sales Corp., 150 F.2d 512, 513 (2d. Cir. 1945)). Thus, “the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the [preexisting] work in some meaningful way.” Schrock v. Learning Curve International, Inc., 586 F.3d 513, 521 (7th Cir. 2009).

 

“While the quantum of originality that is required may be modest indeed,” courts have recognized that derivative works “[l]acking even a modest degree of originality. . . are not copyrightable.” L. Batlin & Son, 536 F.2d at 490; Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 911 (2d Cir. 1980). Miniscule variations do not satisfy this requirement, such as merely changing the size of the preexisting work. Merely recasting a work from one medium to another alone does not support a claim in derivative authorship. See L. Batlin & Son, 536 F.2d at 491. “Nor can the requirement of originality be satisfied simply by the demonstration of ‘physical skill’ or ‘special training.'” Id.

 

A registration for a derivative work only covers the new authorship that the author contributed to that work. It does not cover the authorship in the preexisting work(s) that has been recast, transformed, or adapted by the author of the derivative work. H.R. REP. NO. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670.

 

Likewise, a registration for a derivative work does not cover any previously published material, previously registered material, or public domain material that appears in the derivative work. Nor does it cover any material that is not owned by the copyright claimant. See 17 U.S.C. § 103 (B) (stating that the copyright in a derivative work is “independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material”). If a derivative work contains an appreciable amount of previously published material, previously registered material, public domain material, or third party material, the applicant should exclude that material from the claim using the procedure described in Chapter 600, Section 621. For additional information concerning the scope of the copyright in a derivative work, see Chapter 500, Section 507.2.