807.6 Derivative Audiovisual Works
An audiovisual work is considered a derivative work if it recasts, transforms, or adapts one or more preexisting works. See 17 U.S.C. § 101 (definition of “derivative work”). The preexisting material may or may not be audiovisual material. For example, a videogame may be based on a motion picture or a graphic novel. The author of the derivative work must have permission to use the preexisting material if that material is protected by copyright, and the author must contribute a sufficient amount of new original authorship in order to register the new work as a derivative work. See Chapter 300, Sections 311.2 and 313.6 (B).
• A CD-ROM that combines archival footage and photographs from the Korean War with a newly created narration, new interviews with veterans, and new textual information about the conflict.
• A karaoke disc that combines new pictorial displays with the lyrics and music of a preexisting song.
A new version of a preexisting audiovisual work also may qualify as a derivative work, provided that the revisions, additions, deletions, or other modifications, taken as a whole, constitute a new work of authorship.
• Revising a published website by adding new updates consisting of text and video clips.
• Writing new computer code for a published videogame so that the work can be released on a different platform.
When completing an application for a derivative work, the applicant should identify and exclude the preexisting material from the claim and describe the new authorship that the author contributed to the preexisting work. The applicant also should limit the claim if the derivative work contains material created by others that is not a part of the claim.