13 Facts About Derivative work

In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work .

The derivative work becomes a second, separate work independent in form from the first.

The transformation, modification or adaptation of the Derivative work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright.

Copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.

The copyright in such Derivative work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

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Typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material.

Statutory definition is incomplete and the concept of derivative work must be understood with reference to explanatory case law.

Recently in Keeling v Hars, the Second Circuit held that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient original content, the original contributions in such an unauthorized derivative work are protectable under the Copyright Act.

The requirement that a derivative work must assume a concrete or permanent form was recognized without much discussion in Galoob.

Marcel Duchamp created the Derivative work by adding, among other things, a moustache, goatee, and the caption to Leonardo's iconic Derivative work.

Mockery of "Oh, Pretty Woman, " discussed in Campbell v Acuff-Rose Music, Inc, is a similar example of transforming a work by showing it in a harsh new light or criticizing its underlying assumptions.

Musical West Side Story, is a derivative work based on Shakespeare's Romeo and Juliet, because it uses numerous expressive elements from the earlier work.

Nevertheless, no legal rule prevents a derivative work from being based on a work that is itself a derivative work based on a still earlier work — at least, so long as the last work borrows expressive elements from the second work that are original with the second work rather than taken from the earliest work.