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613.6 Identifying the Author of a Derivative Work

 

613.6 Identifying the Author of a Derivative Work

A derivative work is a work that is “based upon one or more preexisting works.” 17 U.S.C. § 101. Typically, a derivative work is a new version of a preexisting work or an entirely new work that combines material from a preexisting work with an appreciable amount of new material.

 

If the applicant intends to register a derivative work, the applicant should provide the name of the author or authors who created the new or revised material submitted for registration.

 

As a general rule, the applicant should not provide the name of the author(s) who created any preexisting material that appears in the derivative work. If the author of the preexisting material is named in the application, the registration specialist may register the claim if this information is provided in the Material Excluded field (in the case of an online application) or the Preexisting Material space (in the case of a paper application).

 

Examples:

 

• An online application for a sound recording names Molly Moe as the author of the work. The recording contains Molly’s performance of a song which was written by Samuel Brackett. The applicant excludes the music from the claim by completing the Limitation of Claim screen, but does not provide Samuel’s name in the Name of Author field. The registration specialist will register the claim.

 

• An online application is submitted for a short story that contains extensive quotes from William Shakespeare’s Macbeth. April Pearly is named as the sole author of the work. The applicant excludes the passages from Macbeth from the claim by completing the Limitation of Claim screen, but does not provide Shakespeare’s name in the Name of Author field. The registration specialist will register the claim.

 

• A paper application names George Milo as the author of a lithograph. The applicant checks the box indicating that the work is “a reproduction of a work of art,” but does not name the author of the preexisting work of art. The registration specialist will register the claim.

 

• An online application for a dramatic work names Michael Kelly as the author of the work. The New Material Included field asserts a claim in “text.” The Material Excluded field explains that the work is “based on letters and journal entries by Samuel Chase.” The registration specialist will register the claim without communicating with the applicant.

 

• Prudhoe Sellars wrote a novel, which was translated into Spanish by John Puff. The applicant submits an application naming Prudhoe as the author of the work. In the New Material Included field the applicant asserts a claim in “translation” and in the Material Excluded field he excludes “Original novel by Prudhoe Sellars” from the claim. The registration specialist will communicate with the applicant. The applicant clearly intends to register the Spanish translation, rather than the original novel. Therefore, John should be listed in the Name of Author field, rather than Prudhoe.

 

For a general discussion of derivative works, see Chapter 500, Section 507. For guidance in completing the Material Excluded/New Material Included fields in the online application and spaces 6 (A) and 6 (B) in the paper application, see Section 621.