Definition of Derivative Work under Copyright Law

For copyright protection to be linked to a subsequent, allegedly derivative work, it must have its own originality. It cannot be a red, non-creative variation of the previous underlying work. The latter work must contain sufficient new expression beyond that contained in the earlier work for the latter work to satisfy the requirement of originality of copyright. However, the script is a derivative work of the book, with its own copyright that protects the unique elements of the book, such as.B. additional dialogue or staging instructions for a scene. Under copyright laws, one of the five exclusive rights granted to a copyright owner is the right to prepare and distribute derivative works based on the original copyrighted work. Exclusive right means that only the copyright owner has the right to create a derivative work based on their pre-existing work or to allow someone else to create it. See my previous article Copyright Basics For Writers for more information on exclusive rights under copyright. I believe that the answer to the question of justification depends primarily on whether and to what extent the use in question is transformative. The use must be productive and use the substance mentioned in a different way or for different purposes from the original. . [If] secondary use adds value to the original – when the cited material is used as raw material, transformed into the creation of new information, new aesthetics, new ideas and new understandings – this is exactly the kind of activity that the fair dealing doctrine is designed to protect for the enrichment of society. Transformative uses may include criticizing the cited work, exposing the character of the original author, proving a fact, or synthesizing an idea argued in the original to defend or refute it.

They can also include parody, symbolism, aesthetic explanations, and countless other uses. A derivative work is a new version based on an existing work. Common derivative works can be an adaptation, translation (languages or in new media), musical arrangement, fictionalization (non-fiction fiction), dramatization (new work that can be performed in public), film, sound recording, abbreviation, condensation, editorial revision, or annotation. The use of pop-up ads, in which third-party advertisements appear on a competitor`s website and change their appearance to allegedly create a derivative work[31], can pose taxation problems. Proponents of these pop-ups (the defendants in infringement proceedings) argue that they provide the public with additional information about purchasing decisions (particularly in the form of price comparisons), but opponents (the plaintiffs in these cases) argue that the defendant`s conduct affects the website owner`s interest in the « integrity » of its website and its investment interest in the creation and maintenance of the site. [32] Independent work is a work in which the Creator has made an independent effort (or « worked » on the work as characterized by the courts) and also a kind of independent creativity (or a « minimum of creative spark » as characterized by the courts) has contributed to the development of the work. A distinction must always be made between the reproduction of an original work and the development of a derivative creation. We understand that capturing certain terms in the IP spectrum can be intimidating. But we`re here to help.

If you have any concerns about derivatives or copyright in general, please feel free to email us at connect@abounaja.com. As our ongoing efforts to support the responsive community and we look forward to hearing from you. The most famous derivative work in the world would be L.H.O.O.Q.[35], also known as the Mona Lisa with a mustache. Generations of American copyright professors – at least since the 1950s – have used it as a paradigmatic example. Marcel Duchamp created the work by adding Leonardo`s iconic work, among others, a mustache, a goat and the legend L.H.O.O.Q. (letters phonetically resembling the phrase in French She`s Hot In). These few seemingly insignificant additions were very transformative because they enraged the contemporary French bourgeoisie[36] by mocking their cult of « jocondism »[37], which was later described as « practically a secular religion of the French bourgeoisie and an important part of its self-image. » Duchamp`s degradation of his icon is considered « a significant blow to impress the bourgeois. » Thus, it has been said that « turning a cult icon into an object of ridicule by adding a small quantum of additional material can easily be considered as the preparation of a derivative work ». [38] At this point, a parodistic derivative work based on Duchamp`s parodistic derivative work is shown. Under copyright law, derivative rights are protected in two ways: Google`s use of thumbnails is very transformative. In Kelly, we concluded that Ariiba`s use of thumbnails was transformative because « Arrida`s use of images served a different function than Kelly`s – to improve access to information on the Internet over artistic expression. » Although an image was originally created to perform an entertainment, aesthetic, or information function, a search engine converts the image into a pointer that guides a user to an information source.

Just as a « parody has an obvious claim to transformative value » because it « can bring a social benefit by illuminating an earlier work while creating a new one, » a search engine offers a social advantage by integrating an original work into a new work, namely an electronic reference tool […].

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