D for Derivative Works

According to the United States Copyright Act (17 U.S.C. Section 101) a “derivative work”is

a work based upon one or more pre-existing 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.”

In English: a derivative work is something which builds upon, continues or expands upon unique and characteristic elements of a pre-existing creative work.

Examples of derivative works include:

1. Sequels (Iron Man II, Indiana Jones and the Last Crusade)

2. Works which include characters and/or settings from the original (The Lord of the Rings trilogy is technically a “derivative work” when compared with The Hobbit.)

3. Novelizations of works which originally appeared as films (and vice versa).

4. Fanfic.

These examples are not definitive, but hopefully they give you some idea about the wide scope of works the term covers.

Derivative works do receive copyright protection, even when written by people other than the author or copyright holder of the original work the derivative was based on. That said,  copyright on the derivative work includes only the original elements legally appearing in the derivative work and created by the derivative work’s author or creator. Non-original components – including everything “borrowed” or taken from the original – remains copyrighted by the creator of the original work.

Derivative works are usually copyright infringement if they are created without appropriate permission (license) from the person who owns the copyright on the original work.

In some cases, the “fair use doctrine” protects derivative uses of copyrighted works. For example, a book review will use the title, character names and often other information about the novel or other book examined in the review. In that sense, book reviews are derivative of the original (though attorneys generally don’t consider book reviews “derivative works”). However, book reviews almost always receive protection from allegations of infringement (even those containing “spoilers”) under the fair use doctrine because reviews are a form of reporting and critique.

On the opposite end of the spectrum, Fanfic (“fan fiction” for the uninitiated) is almost always copyright infringing (if written without permission from the author of the original work – which almost all fanfic is). Fanfic involves third parties writing made-up stories about characters and situations from popular works of fiction – for example, a story in which Harry Potter, Ron Weasley and Hermione Granger travel to Beijing, meet with the ghost of Mao Zedong and learn the secret location of Ghenghis Khan’s hidden tomb. The work is derivative of J.K. Rowling’s Harry Potter series, and if unauthorized, constitutes copyright infringement.

Some derivative works are created by the original authors themselves. Each new Jack Reacher novel is derivative of Killing Floor, Lee Child’s first novel featuring ex-MP Jack Reacher. In this case, copyright is simple – Lee Child holds copyright on the original, and also on each of the derivative works.

Other derivative works are created with license from the original copyright holder. James Rollins’ novelization of Indiana Jones and the Kingdom of the Crystal Skull was licensed (contracted) by the copyright holders of the movie franchise. Copyright in the original elements of the novel belong to James Rollins. Copyright on the elements taken from the movie script belong the the scriptwriter (or possibly to Rollins, if granted to him in his writing contract) and copyright on the Indiana Jones character belongs to its creator.

Complicated? Sometimes that’s how derivatives roll.

As always, if you have questions about this or any other publishing law issues, please post them in the comments or ask me on Twitter, @SusanSpann, using the #PubLaw hashtag.