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This montage of different images is an example of a derivative work
This montage of different images is an example of a derivative work

In copyright law, a derivative work is an expressive creation that includes major, basic copyrighted aspects of an original, previously created first work. Copyright is a legal concept enacted by Governments, giving the creator of an original work of authorship Exclusive rights to control its distribution usually for

Contents

United States Law

Definition

In the United States, "derivative work" is defined in 17 U.S.C. § 101:

A “derivative work” is a work based upon one or more preexisting 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. The United States of America —commonly referred to as the Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law. 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”.

US Copyright Office Circular 14: Derivative Works notes that:

A 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. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

Derivative work right

The owner of a copyright has the exclusive right to prepare derivative works based on that copyrighted item under 17 U.S.C. § 106(2). Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law. US Copyright Office Circular 14: Derivative Works further states that:

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

Thus, one who creates an unauthorized derivative work violates the derivative work right.

As copyrightable subject matter

17 U.S.C. § 103(a) provides that derivative works are copyrightable subject matter. Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law. 17 U.S.C. § 103(b), however, indicates that

The copyright in a . Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law. . . 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.

Unauthorized copying of a derivative work is a violation of 17 U.S.C. § 106(1). Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law.

Effect on duration of copyright protection

When a derivative work is copyrighted, 17 U.S.C. § 103(b) dictates that,

[t]he copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law.

Thus, registering a derivative work will not artificially extend the length or scope of protection of the underlying work.

Compared to fair use

Even if a work is found to be an unauthorized derivative, an alleged infringer can escape liability via the defense of fair use. Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders such as use for For example, in Campbell v. Acuff-Rose Music, Inc., the Supreme Court found that although a parody of the song "Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense. Campbell v Acuff-Rose Music, 510 US 569 ( 1994) was a United States Supreme Court Copyright law case that stands for the proposition " Oh Pretty Woman " is a song released in 1964, which was a worldwide hit for Roy Orbison. 2 Live Crew is a hip hop group from Miami Florida. They caused considerable controversy with the Sexual themes in their work particularly on their

Canadian Law

Though Canadian copyright law does not explicitly define "derivative work", the Copyright Act of Canada does provide the following generally agreed-upon[1][2] examples of what constitutes a derivative work in section 3:

"copyright". Copyright Act of Canada is Canada 's federal statute governing Copyright law in Canada. . . includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work

Example

Since many films are based on novels or scripts they are classed as derivative works. In cases where the film's copyright has lapsed but the original work is still covered, the film cannot be freely distributed without the permission of the original author on whose work the film was based. [3] For example, the 1912 George Bernard Shaw play Pygmalion was made into a film of the same name in 1938. George Bernard Shaw ( (26 July 1856 &ndash 2 November 1950 was an Irish Playwright. A play, or stageplay, is a form of Literature written by a Playwright, almost always consisting of Dialogue between Fictional characters Pygmalion (1913 is a play by George Bernard Shaw based on the Greek myth of the same name. Pygmalion is a 1938 British film based on George Bernard Shaw 's play of the same name, and adapted by him for the screen The film's protection had lapsed and it was thus released into public domain, but that of the original play was retained. The public domain is a range of abstract materials &ndash commonly referred to as Intellectual property &ndash which are not owned or controlled by anyone After a third party released prints of the film they were challenged by the copyright-holders of the play, with a court ruling that releasing the prints was a copyright infringement. [4]

Software

The definition of derivative works of software is not entirely clear. [1]

This is a particular problem for software distributed under licenses such as the GPL which restrict how derivative works may be distributed. For example, the GPL grants permission to distribute a derivative work of a GPL-covered program, but only if the derivative work is itself distributed under the GPL.

A more detailed account on the issue can be found at Derivative Works by Lawrence Rosen.

See also

References

  1. ^ Supreme Court of Canada - Decisions - Théberge v. Galerie d'Art du Petit Champlain inc.. An author is defined both as "the person who originates or gives existence to anything" and that authorship determines responsibility for what is created History and purpose Before the 1976 Act the last major revision to statutory copyright law in the United States occurred in 1909 Lewis Galoob Toys Inc v Nintendo of America Inc ( Ninth Circuit Court of Appeals, 1992) was a court case which established the rights of users Intellectual property ( IP) is a legal field that refers to creations of the mind such as musical literary and artistic works inventions and symbols names Merchandising refers to the methods practices and operations conducted to promote and sustain certain categories of commercial activity A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an A trademark or trade mark, represented by the symbols ™ and ®, or mark is a distinctive sign or indicator used by an individual A tie-in is an authorized product based on a media property a company is releasing such as a movie or Video / DVD, Computer game, Video game A trade secret is a Formula, practice, Process, Design, instrument, Pattern, or compilation of Information which A work made for hire (sometimes abbreviated as work for hire and WFH) is an exception to the general rule that the person who actually creates a work is the legally-recognized Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders such as use for Retrieved on 2008-05-24. 2008 ( MMVIII) is the current year in accordance with the Gregorian calendar, a Leap year that started on Tuesday of the Common Events 1218 - The Fifth Crusade leaves Acre for Egypt. 1276 - Magnus Ladulås is crowned  “examples of what might be called derivative works [are] listed in s. 3(1)(a) to (e) of our Act”
  2. ^ Creative Commons Attribution 2.5 Canada Legal Code. Retrieved on 2008-05-24. 2008 ( MMVIII) is the current year in accordance with the Gregorian calendar, a Leap year that started on Tuesday of the Common Events 1218 - The Fifth Crusade leaves Acre for Egypt. 1276 - Magnus Ladulås is crowned  “Derivative works include: . . . ”
  3. ^ Avner, Jon. "Can I Show "It's A Wonderful Life" ?". Accessed 26 August 2006. Events 1071 - Battle of Manzikert: The Seljuk Turks defeat the Byzantine Army at Manzikert. Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar.
  4. ^ Lloyd L. Rich. The Publishing Law Center. 1998. "The Public Domain and the Impact of New Legislation". Accessed 26 August 2006. Events 1071 - Battle of Manzikert: The Seljuk Turks defeat the Byzantine Army at Manzikert. Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar.

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