Copyright Compendium

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507.1 What Is a Derivative Work?

 

507.1 What Is a Derivative Work?

The Copyright Act 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, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.” The statute also states that “[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. § 101.

 

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, reprinted in 1976 U.S.C.C.A.N. 5659, 5670; S. REP. NO. 94-473 at 55. 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 the 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 authorship.

 

As the legislative history explains, derivative works include “every copyrightable work that employs preexisting material . . . of any kind,” regardless of whether the preexisting material is protected by copyright or whether the copyright in that material has expired.

H.R. REP. NO. 94-1476 at 57, reprinted in 1976 U.S.C.C.A.N. at 5670; S. REP. NO. 94-473 at 55. Typically, a derivative work is a new version of a preexisting work or a work that is based on or derived from a preexisting work.

 

Examples:

 

• A motion picture based on a novel or a play.

 

• An English translation of a novel written in Spanish.

 

• A sculpture based on a drawing.

 

• A drawing based on a photograph.

 

• A lithograph based on a painting.

 

• A musical arrangement of a preexisting musical work.

 

• A drama based on the letters and sermons of Cotton Mather.

 

A new edition of a preexisting work may also qualify as a derivative work, provided that the revisions or other modifications, taken as a whole, constitute a new work of authorship.

 

Examples:

 

• A revision of a previously published book.

 

• A revision of the artwork and text on a website.

 

• A new version of an existing computer program.

 

• A new version of a doll or stuffed animal.