Definition[]
Under Section 101 of the 1976 Copyright Act, 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. | ” |
Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or new version.
To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself.
The Act makes clear that the subject matter of copyright specified in Section 102 (literary works, musical works, sound recordings, etc.) includes derivative works.[1]
Copyright protection of derivative work[]
The copyright in a derivative work extends only to the contribution of the author of the derivative work (the compiler), and does not affect the copyright protection granted to the preexisting material.[2] It does not extend to any preexisting material and does not imply a copyright in that material.
One cannot extend the length of protection for a copyrighted work by creating a derivative work. A work that has fallen in the public domain, that is, a work that is no longer protected by copyright, may be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public domain material. Neither will it prevent anyone else from using the same public domain work for another derivative work.
In any case where a protected work is used unlawfully, that is, without the permission of the copyright owner, copyright will not be extended to the illegally used part.
Right to create derivative work[]
The Act grants the copyright owner the exclusive right to control the abridgment, adaptation, translation, revision or other "transformation" of their works.[3] A user who modifies — by annotating, editing, translating or otherwise significantly changing — the contents of a downloaded file creates a derivative work. Derivative works may also be created by transforming a work, such as an audiovisual work, into an interactive work.