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.
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“.)
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.
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Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
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