What's A Derivative Work?

U.S. copyright law gives the copyright owner the exclusive right to prepare works derived from the copyrighted work, or adapt the copyrighted work.  But what is a derivative work or adaptation?  The statute has a definition:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. 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”.

It is clear that changing the form of a work, such as rewriting a book as a play, is an adaptation, and consitutes infringement of the book copyright book.  As in the right to reproduce, the copyright owner still must prove that the accused infringer copied the work, and that the resultant work is substantially similar to the copyrighted work in its expression.  As before, the expression is protected, not the idea.  

Another form of impermissible adaptation of a copyrighted work is when the copyrighted work is altered even if the work is not, in fact, copied.  For example, if a person buys authorized copies of a book containing copyrighted photos or other graphic art, then cuts the art out of the book and treats them with shellac or laminates them, and then offers the changed graphic art to the public as wall decorations, they did not copy the work.  However, they very well might be found liable for infringing the copyright by by the unauthorized adaptation of the work.  

There are, of course, certain exclusions to the exclusive right to adapt copyrighted works.  For sound recordings, infringement is only found if the adapted work actually copies the copyrighted work-- there is no liability if the adaptation uses an independently recorded version.  For computer programs, an authorized user does not infrine the copyrighted work if utilizing the program requires making and adapting a copy of the program.  Finally, for architectural works, the owner of a building embodying a copyrighted architectural work can alter or destroy the building without the copyright owner's permission. 

Next we'll talk about the exclusive right to distribute copyrighted works to the public.  Let us know if you have any questions or comments.  Post them on the blog, or email me at JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.