If you create a work that is protected by copyright, you are the owner of an exclusive set of rights. This article will focus on one of those - the derivative right.
What is a Derivative Work?
A derivative work is one that incorporates someone else's work within it. In legal speak, it is defined 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.” 17 U.S.C. § 101. The owner of a copyright is the only person legally allowed to create derivatives using their works.
You've certainly seen derivative works before but here are some examples:
The Harry Potter films - They are all derived from the pre-existing copyrighted books;
There is an Amazon show I watch called "Bosch" which is based on several Michael Connelly books;
A remix or a new arrangement of a song;
Some translations of the Bible;
Sculptures based on drawings;
Drawings based on photographs;
New editions of books.
The one theme running through all of the above examples is that they are not just "based on" a pre-existing work but, in some significant way, they have also transformed, recast or adapted the original into a different medium, mode, language, or version while still representing that original. Neither minor nor drastic alterations would generally qualify as derivative works; the former because there has been no transformation and the latter because it is not representative of the original.
Copyright Protection for Derivative Works
If you make creative and original alterations to a pre-existing work, you can obtain a copyright on the resulting derivative work but there are some caveats. The copyright does not extend to the pre-existing work used to make the derivative. So, if you use a work in the public domain, (i.e. it is no longer protected by copyright), to create a derivative, if it is eligible for copyright, you do not have any ownership of the public domain piece; it remains in the public domain. What you own is all of the additional creative and original alterations you made.
For example, as it pertains to works like the Bible, while the King James Version is in the public domain, the newer translations are considered copyrighted derivative works that are the property of their various owners. But, the owner of the New King James Version, for instance, does not have any ownership over the King James Version although that version provided the framework for their translation. They own only the new alterations.
If you use your own work to make a derivative, while you still own the underlying material, you cannot extend the length of the original copyright by using it in a derivative.
For example, Steamboat Willie, shown here, is the earliest version of Mickey Mouse. The copyright on Steamboat Willie expires in 2024. The modern versions of Mickey Mouse, even though they are based on Steamboat Willie and have their own copyrights, do not effect the copyright term of the original work. The copyright only extends to the new creative aspects, not the underlying original.
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