Derivative Works

Using Another Author’s Work — Is Your Derivative Work Infringing Someone’s Copyright?


Creative inspiration for writers often comes from the work of other authors.  Maybe we are inspired by someone’s story or moved by a relatable character.  Maybe we want to add something new to an existing story, or expand an unfinished plotline, or explore the nuances of a character in a different premise. Even better, sometimes our own stories and characters inspire us to continue with a sequel or film based on the original work. Depending on the preexisting content and who owns the copyright to it, the new work adapted from the original content could under certain circumstances infringe someone’s copyright or license to the exclusive rights granted by a copyright. Under the copyright laws, the term is known as Derivative Works.

Derivative Works Defined

A derivative work is a new version based on a preexisting work. Common derivative works might be an adaptation, translation (languages or into new mediums), musical arrangement, fictionalization (fictional work created from nonfiction), dramatization (new work that can be performed in public), motion picture, sound recording, abridgment, condensation, editorial revision, or annotation.

For copyright purposes, the new material added to the preexisting material must represent an original work of authorship to qualify as a derivative work, as opposed to only copying the preexisting work or making minor editing changes. The derivative work must also use a substantial amount of the preexisting work. How much is substantial? Under the copyright laws, substantial equals enough of the preexisting work that an average reader would conclude the derivative work has been adapted from the preexisting work.

Types of Derivative Works

As I noted above, there are many types of derivative works. The following are few examples:

  • Motion pictures based on a book or play
  • Translations of a novel into another language or into another medium like an audio book
  • Revisions of a previously published book
  • Sculptures based on a drawing
  • Drawings based on a photograph
  • Photographs of a sculpture
  • Lithographs based on a painting
  • Musical arrangements of a preexisting musical work, like a cover a song or contemporary work based on a folk song
  • A recording of a song remixed with an already existing song
  • Adaptations of a dramatic work
  • Fan Fiction
  • Creative work with characters from a preexisting work, like a sequel

Permission Needed To Create Derivative Works

Under the copyright laws, one of the five exclusive rights bestowed upon a copyright owner is the right to prepare and distribute derivate works based on the original copyrighted work. Exclusive right means only the copyright owner has the right to create, or to authorize someone else to create, a derivative work base on their preexisting work. See my earlier article Copyright Basics For Writers for more information on the exclusive rights under a copyright.

If a copyrighted work is used to create a derivative work without the appropriate permission of the copyright owner, the unauthorized derivative work usually constitutes copyright infringement (but there are exceptions).  Appropriate permission to create a derivative work means obtaining a license from the copyright owner of the original work.

For example, novelization of the movie Clueless required authors H.B. Gilmour and Randi Reisfeld to obtain a license from Paramount Pictures to create the Clueless series of young adult novels published by Simon & Schuster. Same for Alexander Freed who wrote the novel Rogue One: A Star Wars Story based on the 2016 film. His novelization required a license from Disney/Lucas Films.

Or say you want to write a spin-off novel or a screenplay based on someone’s copyright protected character. You need permission from the copyright owner to create the derivate work based on the preexisting characters. Like fan fiction, which is a story based on elements from original content and is considered a derivative work. Technically, it infringes the author’s copyright. However see my article on Fan Fiction for more information why copyright holders tolerate most fan fiction.

If you need information on how to obtain permissions, see my earlier article on Copyright Permissions.

No Permission Needed To Create Derivate Works

There are instances when an unauthorized derivative work is not copyright infringement. In these cases you do not need to seek permission.

You Own The Copyright

If you are the author of the preexisting work and you still own the copyright, then you can create any adaptation or derivate work anytime you like. Many authors create derivative works from their own material. Take sequels for instance. Harry Potter, Twilight, and Percy Jackson — all sequels or series, all derivatives written by the authors of the original books. But be advised, if you are the author and you licensed the exclusive right to create a derivative work to someone else, you are prevented from creating the derivative work.

Public Doman

If the underlying work is in the public domain, then no permission is needed. Creative work enters the public domain when the creator gives up the rights to the work, or the copyright expires. Under these scenarios, no permission is needed to use the creative work. In the U.S., an author retains the copyright to their work for their life plus 70 years following their death. If the work is published anonymously, the copyright will last for 95 years from publication or 120 years from creation (whichever is shorter). After those time periods, the work enters the public domain.

For example, books by Jane Austen, classical music by Bach, paintings by Leonardo da Vinci, or plays by Shakespeare are in the public domain (although recreations of these may not be). Likewise, U.S. government works are in the public domain and do not require permission.

If you need more information about public domain, see this Stanford University article or Stephen Fishman’s book is helpful. If you need more information on Permissions, see my earlier article.

Fair Use

If the derivative work falls within fair use, then no permission is needed. U.S. copyright law provides a few limitations on the copyright owner’s exclusive rights in their creative work. These exceptions are known as fair use. Generally, something is considered fair use if the use is for purpose of criticism, parody, news reporting, classroom teaching, scholarship, or research.

Here are two articles about fair use if you need more information: US Copyright Office and Stanford University, or see my earlier article on Permissions.

Copyright Protection For Derivative Works

A derivative work is entitled to a separate copyright. In other words, if you author a derivative work, you will own a copyright in the new work that you created (like plot lines, character traits, scenes, settings), as distinguished from the preexisting material used as the basis for the new work. The new copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work.

A few additional points:

  1. The new copyright in the derivative work will not affect the copyright status, scope, or duration of the copyright held in the preexisting work.
  2. The new copyright will not imply any rights in the preexisting material unless permission has been granted to create the derivate work.
  3. A derivative copyright will not extend to any preexisting material, like previously published or previously registered works, or works in the public domain. 
This means that copyright right law does not allow you to extend the length of a copyright in pre-existing material just by creating a derivative work.
  4. You can register a copyright claim in a derivative work online through the U.S. Copyright Registration Portal, where you will be required to provide information regarding the previous registration of the preexisting material used in creating the derivative, the year the new work was created, and a description of the new material added to the derivative work. See US Copyright Office Circular 14 for more information on the filing process.

If you have questions about creating a derivate work, feel free to ask us. We are happy to help.

 


Photo Credit: Britamainia | VisualHunt | CC BY-NC-SA

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

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