Who Owns a Derivative Work?

People often ask me about derivative works (and who owns them) so today I’m turning the  spotlight on that topic.

The United States Copyright Act (17 U.S.C. Section 101) defines a “derivative work” as:

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.

“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. (Yes, it’s a derivative work, and if it’s not licensed, it’s copyright infringement if you use the names and settings from the original.)

5. Merchandise featuring characters, logos, or settings from popular fictional works (e.g., books or movies).

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. However, derivative works created without permission of the original content owner are almost always copyright infringement.

The copyright in 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.

To repeat: 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 can use the title, character names, reasonable “pull quotes” 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) almost always infringes the copyright in the original work, if written without permission from the author of the original work. 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. That work is derivative of J.K. Rowling’s Harry Potter series, and if unauthorized, constitutes copyright infringement.

Many 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. Each Shinobi Mystery I write is a derivative of the first novel in the series, Claws of the Cat. In this case, copyright ownership is simple – Lee Child holds copyright on the original, and also on each of his derivative works. I own the copyrights in mine.

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 Indiana Jones 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 or owner.

Complicated? Sometimes that’s how derivatives roll.

Have you created any derivative works? Would you ever license derivative work rights in your creations?

As always, if you have questions about this or any other publishing law issues, please feel free to ask in the comments or ask me on Twitter, @SusanSpann.