507.2 The Scope of the Copyright in a Derivative Work
The copyright for a derivative work only covers the new material that the author contributed to that work. It does not cover any of the preexisting material that appears in the derivative work. See 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 (“[C]opyright in a ‘new version’ covers only the material added by the later author, and has no effect one way or the other on the copyright or public domain status of the preexisting material.”). Likewise, a registration for a derivative work does not cover any previously published material, previously registered material, public domain material, or third party material that appears in the work. In other words, 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.” 17 U.S.C. § 103 (B).
Derivative works often contain previously published material, previously registered material, public domain material, or material owned by a third party because by definition they are based upon one or more preexisting works. If a derivative work contains an appreciable amount of unclaimable material, the applicant generally should limit the claim to the new material that the author contributed to the work, and the unclaimable material should be excluded from the claim. For guidance on this procedure, see Chapter 600, Section 621.8. By contrast, there is generally no need to limit the claim if the derivative work is solely based on or derived from unpublished material, unregistered material, or copyrightable material that is owned by the claimant named in the application.
The author of a derivative work may claim copyright in a work that recasts, transforms, or adapts a preexisting work, provided that the preexisting material has been used in a lawful manner. Section 103 (A) of the Copyright Act states that the copyright in a derivative work “does not extend to any part of the work” that “unlawfully” uses preexisting material. 17 U.S.C. § 103 (A). As discussed in Chapter 300, Section 313.6 (B), this provision is intended to prevent “an infringer from benefiting, through copyright protection, from committing an unlawful act.” H.R. REP. NO. 94-1476, at 57, reprinted in 1976 U.S.C.C.A.N. at 5671. The unlawful use of preexisting material may also infringe the right of reproduction and/or the right to prepare derivative works based upon that material.