Copyright Ownership in Derivative Works

Under U.S. Copyright law, “derivative works” are creative works based on a pre-existing work (either copyrighted or in the public domain) which incorporates elements of the original along with new elements, concepts, or ideas.

Sequels, unrelated works based in a pre-existing created world, film scripts, and radio plays are all examples of derivative works. 

The copyright owner of the original work has the exclusive, discretionary right to create or authorize derivative works. Unlicensed derivative works made during the copyright term of the original–including fanfic–are copyright infringement.

Many people are surprised to learn that fanfic which simply copies the characters and situations from someone else’s copyrighted work is copyright infringement, because so much of it exists on the Internet (and elsewhere). However, the law is clear: unlicensed derivative works based on works which are not in the public domain are copyright infringement–and that can include unlicensed fanfic. Authors and publishers don’t always sue to enforce this law, but that doesn’t necessarily make the un-prosecuted fanfic legal. Only derivative works which are licensed or which can pass the complex “fair use” test can escape copyright infringement–and fanfic has been held infringing in multiple cases. For more reading on fair use (a far more complex subject than we have time for today), check this link.

One more note on fanfic, however: fanfic written for the creator’s own personal enjoyment isn’t illegal unless it’s published–which in the legal context can include any public sharing, even free of charge. So it’s okay to write fanfic for your own enjoyment, but beware: once you post it on a blog or website (including message boards), or distribute it, it may be copyright infringement unless it’s licensed, based on a public domain original, or capable of falling within the narrow, case-by-case exceptions under the Fair Use Doctrine. (Please consult a publishing attorney before deciding your work is fair use. The penalties for being wrong can be very, very expensive.)

So…what about copyright in derivative works?

Derivative works are copyrightable, and the copyright on the new elements is owned by the creator of the derivative work.

However, the copyright in a derivative work includes and covers only the new additions, changes, and added material in the derivative work. The copyright in the derivative work does not give the author of the derivative work any rights in or to the borrowed copyrightable elements of the original. This is true whether the original work is still in copyright or whether it has entered the public domain. Public domain elements of the original work remain in the public domain even after their use in “new” derivative works–despite the new creator’s copyright on (portions of) the new work.

For example: the author of a new adventure starring Sherlock Holmes could not claim copyright in the Sherlock Holmes character, his home at 221B Baker Street, or any other element(s) created by Sir Arthur Conan Doyle.

Note that this can create situations where a copyright holder (of the protected elements of an infringing derivative work) is also an infringer of someone else’s copyright. The law still holds the infringer liable to the original copyright holder–often for tens of thousands of dollars in damages. Also, the infringer will face several legal hurdles if (s)he attempts to enforce the derivative copyright. The takeaway here: don’t infringe other people’s copyrights. Beyond that, consult an attorney for an evaluation of your specific legal situation.

You can think of copyright in derivative works as a “partial coverage copyright.” The copyright on all of the elements created by the original author as part of his or her original work remain that author’s sole property and creation. The derivative work’s creator owns the copyright only on the parts (s)he added when creating the derivative work–the new adventure for Sherlock Holmes (and any new villains or settings).

Copyright in derivative works can be registered with the U.S. Copyright Office…but only as derivative works. During the registration process, the author (or person registering the copyright) must identify the work as a derivative and must mention the original and limit the registration to the new, protectable elements only. The original material on which the derivative work is based remains the property of the original owner, and is not included in the derivative copyright.

Have you written a derivative work? Does this make you think differently about the elements of your copyrights?