Derivative Works

As an author or an artist, you may encounter problems if you incorporate all or part of someone else's creation in your work, known as derivative work claims.

Many artists thrive on using material from popular culture to create art with a message. From distorting Barbie's appearance in order to counter the idea that white, blond, and thin are female ideals, to reworking the classic Gone With the Wind from the perspective of a slave and half-sister of Scarlet O'Hara, these artists recognize that our culture benefits from a rich public domain. One commentator said it best: "Cultural works and inventions don't spring from an utter vacuum. They are the product of other people's ideas and works. Practically every melodic theme in music comes from older works, for example."

In order to preserve the incentive for artists and authors to produce works, American copyright law grants creators a limited monopoly right to create works based on or derived from the original creation (derivative works). The law strikes an uneasy balance between an author's or artist's right to profit from their works and other artists' and authors' right to build upon previous works to make new works.

For example, the trial court halted the publication of the novel The Wind Done Gone because it used elements and characters from Gone With the Wind. But the appellate court let the novel be published, holding that the use of those characters and elements was protected under the law. In other cases, artists have produced paintings or photographs and another artist sells copies of the images pasted to floor tiles or tee-shirts. Whether the first artist has a viable copyright violation cause of action against the second artist for violating her right to produce derivative works turns on whether the second artist's appropriation of the first artist's material constitutes fair use

What's a "derivative work"?

Congress revised the federal copyright statute in 1976 to provide copyright owners with statutory protection for derivative works. A derivative work can take the form of "any . . . work [that] may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represents an original work of authorship, is a 'derivative work.'" 17 U.S.C. 107 (1-4)

Also, your work may be using an element from another work that is not copyrightable, like a story line or a stock character.

If you received a cease and desist letter claiming your art is an unauthorized derivative work, this information should help you understand the law to which the letter refers. Unfortunately, even the law does not always draw an obvious line between works that are derivative and works that are not.

Recent Notices

Frequently Asked Questions

Can I cut photographs out of a book, frame them, and sell them separately as new products or works of art?

Uncertain. In essence, what you would be doing is creating a new work based on pre-existing copyrighted material, which is usually known as a derivative work.

The challenges posed by this particular set of hypothetical facts is probably best illustrated by the cases featuring A.R.T. Company, also known as Albuquerque A.R.T. Company. At least part of A.R.T.'s business model was centred around legitimately purchase small lithographs and other works of art and then mounting or fixing them onto tiles, which they would then sell.

This practice was ruled to be copyright infringement in Mirage Editions, Inc. v. Albuquerque A.R.T. Company (856 F.2d 1341 (9th Cir. 1988))". and in MUNOZ v. ALBUQUERQUE A.R.T. CO. , but held not to infringe in another A.R.T. case, Lee v. A.R.T. Company.

What if I buy a digital photo, print it out, and put that on a tile or t-shirt?

The courts have not addressed this specific issue, but digital photos sold individually could be seen as “loose” photos, which means you could frame them or put them on a tile or t-shirt and sell them. Remember, though, that you cannot make and sell multiple copies of the digital photo you bought.

Is a link to a web page a derivative work?

Probably not, but the law on linking isn’t settled yet. One court has suggested that if the web page containing the link incorporates the “linked-to” page in some concrete and permanent form, it might be a derivative work. See Futuredontics v. Applied Anagramics, Inc., 45 U.S.P.Q.\r\n2005 (C.D. Cal), aff’d, 152 F.3d 925 (9th Cir. 1998) (unpublished opinion). Another court ruling indicated that a website that “framed”a web broadcast with its own advertisements had created a derivative work. National Football League v. TVRadioNow Corp., No. 00-CV-120 (W.D.) (Pa. Jan. 28, 2000) (preliminarily enjoining website operator who framed retransmitted broadcast signals with its own advertisements). It is possible that a link that frames the linked page in such a ways as to substantially change its original appearance will be found infringing as a derivative work. But simply linking to a web page, without more, should not create a derivative work.

Can I take a character from Shakespeare and use it in a very different context?

Yes. Shakespeare’s works are in the public domain. The public domain is the term we give to the realm of cultural resources that can be freely used by anyone, corporate or human. It is sometimes characterized as the “raw material” of creative work. This raw material is public in the sense that it is not owned, but it can be transformed into property through the investment of creative labor. It includes unpatentable ideas, abstract laws of nature, natural languages, common plots (e.g., a storyline in which the children of two families that hate each other fall in love), and historical facts. It also includes most published copyrighted works 70 years after the author has died.

I have created a new play based on Shakespeare's play, Hamlet. I know Hamlet is in the public domain. Is my play a derivative work and therefore copyrightable?

For your play to be a derivative work, you must make some minimally creative changes, but the standard for creativity is pretty low. For example, a scaled down model of a sculpture (e.g., a miniature version of Michelangelo's David) could be considered a derivative work if the production of the model required great originality and skill. Remember that if the changes are not creative enough, your new work may simply be considered a copy of the original work, rather than a derivative version of the original. If so, your play would not be independently copyrightable.

Can I take a character from a movie, like Chewbacca from Star Wars, and use it in a play with a very different plot and otherwise different characters?

Probably not. The people who hold copyright in Star Wars own the characters as well as the plot, the filmed images, etc. Placing a distinctive fictional character in a different context or medium is still copying that character, and therefore infringement. However, if you use the character for the purposes of parody or criticism you might be making a legitimate fair use of the character. Note that in one case involving Walt Disney, Inc. and a comic book publisher, the comic book publisher argued that his use of the images of Mickey Mouse, Minnie Mouse and Donald Duck was satirical, and therefore fair use. The Ninth Circuit rejected the fair use argument, reasoning that the comic book took more of the images than was necessary to suggest the characters in the minds of the readers and therefore exceed the bounds of fair use. See Walt Disney Productions v. Air Pirates, 581 F. 2d 751 (9th Cir.1978).

Can I make a sculpture based on a photograph without permission?

No. The sculpture would be a derivative work. In one famous case, artist Jeff Koons made a sculpture based on a photograph of a group of puppies and argued that the sculpture was a “fair use.” See Rogers v. Koons, 960 F.2d 301 (2d Cir 1992). The court found that the sculpture was not a fair use, in part because the sculpture damaged the photographer's potential market for derivative works. The photographer might want to grant a license to another sculptor to make a new work based on the photograph. If so, the existence of Koons’ sculpture could reduce the potential market available to that licensee and thereby reduce the value of the photographer's copyrights.

Can I take a photograph of a painting and sell the photograph?

Probably not. If the photograph contained a sufficient amount of creativity, it would be a derivative work; if not, it would simply be a copy. Either way, you need permission unless you can show your use is fair use. Fair use may be especially difficult to show if your photograph is essentially a “copy” of the painting. Fair use would be easier to claim if your photograph is transformative. For example, if the photograph were intentionally blurred and taken from an interesting angle and/or the painting is simply a small part of an overall photograph, a court might find the use transformative.

I’ve written a new arrangement based on a traditional folk song. I’ve heard that another musician has also written a new arrangement based on this song. Can she stop me from copyrighting my version? Can I stop her from copyrighting her version?

Assuming the original traditional folk song is in the public domain, both of you are free to copy and revise the original song. You are not free to copy each other

What if I’ve written an article with a partner, and we’ve published it, and I want to make some changes to it? Can I publish the revised article under my own name? Do I own that work?

You and your partner are joint authors of the article, which means you are both free to do what you like with it as long as you don’t infringe on any copyrights you assigned to the publisher and you split any profits. If your changes are substantial and creative enough, the revised article will be a derivative work of the original article. You own that derivative work.Remember, though, that you have copyright only in the creative changes. That means that your partner is also free to make changes to the original published work—your creation of a derivative work doesn’t prevent her from making one too. She is not free, however, to make changes to your derivative work—your revised article—without your permission.

Can I make and sell lithograph prints or T-Shirt with a likeness of a famous character such as Stan Laurel of Laurel and Hardy?

A movie is a creative work, and the use of particular portions of that work may result in a derivative creation. For example, T-Shirts printed with an abstracted but recognizable image of the final scene of Gone with the Wind might be considered derivative works. But the human face and body are not, in themselves, copyrightable. But copyright is not the only form of intellectual property. The human face and body are protected by the right of publicity, i.e. a person’s right to\r\ncontrol the commercial use of his or her identity. This right is based on state law, and it is particularly broad in California. See e.g. White v. Samsung Electronics America, Inc., 971 F.2d 1395, 23 USPQ.2d 1583 (1992). Laurel’s heirs can invoke it, as well.

I’m an architect, and I have published a drawing showing a novel bridge approach that will relieve traffic congestion. Another architect used my drawing to actually design a bridge. Can I sue?

No. The design itself might be patentable, but it is not copyrightable. Copyright law covers only expressions, not ideas. So we can’t copyright algorithms, or can openers, or mathematical formulas, or physical structures. You could sue for copyright infringement if someone reproduced your drawing, but only patent law can protect the design.

Can I write a book of trivia questions based on a television show?

.Probably not. A court held that a book of trivia questions based on the television show Seinfeld was substantially similar to the show itself and therefore could be treated as a

I’ve written a book on chess that includes some interesting chess problems. Another publisher has just put out a book containing the same problems! What can I do?

That depends. Does the second book use the same expression as used in your book? If so, and that expression is minimally creative, you may have an action for copyright infringement. If not, the problems will probably treated as uncopyrightable products of a mathematical, predictable distribution of the pieces on the board based on principles of play. In an old case, an author of a book on contract bridge sued a newspaper for printing a bridge problem that he claimed was substantially similar to a problem contained in his book. The court held that the author had “no exclusive rights in the particular distribution of the fifty-two cards, in the problem of play, or the principles of contract bridge applicable\r\nto its solution.” The author could only claim copyright in the language used in presenting the problem.

See Russell v. Northeastern Pub.Co., 7 F.Supp. 571 (D.Mass 1934)

What constitutes a derivative work?

[not yet answered]

What is "willful copyright infringement"?

Willful infringement occurs when the infringer knows that the material they are copying is protected by copyright.

In many cases, the penalties for copyright infringement are greater if the infringement is willful.