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What is a Derivative Work, and Why should I Care?

Picture of Leonardo's Mona Lisa with mustache and goatee added by Marcel Duchamp

Marcel Duchamp’s derivative work of Leonardo’s Mona Lisa

On occasion I am asked about the extent to which a new work can incorporate elements of a pre-existing work without infringing the pre-existing work’s copyright. To answer such a question, one must understand derivative works.

17 U.S.C. Section 101 says (emphasis added):

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”.

Put simply (and tautologically), one can think of a derivative work as one that is derived from another work.

As discussed in Copyright Protection in One Easy Lesson, one of the exclusive rights of a copyright owner is to make derivative works (17 U.S.C. Section 106).

However, a derivative work prepared by someone other than the copyright holder will infringe the copyright only if the derivative work includes a substantial enough portion of the pre-existing work such that the works are “substantially similar“. This determination is highly fact-dependent and cannot be made in the abstract or as a generalization. (A case involving substantial similarity of two songs is discussed in “Copyright Infringement: Public Announcement was Barking up the Wrong Tree“.)

Depending on facts, the “fair use” defense to an allegation of copyright infringement by a derivative work may be available.

Bottom line: You should care about derivative works because if you use elements of someone else’s copyrighted work, you may be committing copyright infringement.

Check out all posts about copyright.

Photo credit: Wikipedia

Dana H. Shultz, Attorney at Law  +1 510 547-0545  dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.

  1. 5/17/2011 | 2:14 am Permalink

    In all this legal wrangles of copy write protection and debate on derivative work, how does a business like a custom software development will work?

    1. Every new software which the company writes, will have many traces of previously developed software under work-for hire contracts

    2. Once the software gets released in market, there are possibility of some other client coming to get similar/same software done. How does such situations be handled. A company cannot unlearn the technology.

    3. All the posts on your blogs related to protection of buyer, but does the law provide an umbrella for the providers in terms of source code as IP, and their re-use.

    BTW, thanks a lot for so much information. It answers the questions which normally a small businessman would not even think of.

  2. 5/18/2011 | 10:27 am Permalink

    @Viv
    Thank you for your comment, which inspired me to write Sometimes You *Shouldn?t* Assign All Rights. The thrust of that post: It is appropriate for developers to retain ownership of their software toolkits; the customer, however, needs a license granting appropriate rights to toolkit software that is incorporated into any deliverable.

  3. 4/6/2012 | 1:05 pm Permalink

    Dana can you please explain is it necessary to obtain permission from copyright owner to publish book summaries.
    There are web sites which sell book summaries and abstracts (getabstract.com, summary.com etc.), but it is unclear for me if they need permission from hte book copyright owner in order to publish and sell these summaries.
    This is definitely derivative work, however, it is unclear to me if a summary is substantially similar to the book at matter – you don’t actually use any citations, just summarize and rephrase with your own words.

    • 4/7/2012 | 1:39 pm Permalink

      It’s impossible to answer your question definitively in the abstract, because determination of infringement is highly fact-specific.

      To the extent that you summarize by taking verbatim excerpts from the book, you have substantial similarity, thus infringement. To the extent that you rephrase in a way that is distinctly different from the book’s text, there is no infringement.