This is the third part in our series on what makes a copyright.  If you’re just jumping in, take a look at the first two parts linked below to get caught up.  To refresh, the six parts of copyright are:

• The right to reproduce the copyrighted work
• The right to prepare derivative works based upon the work
• The right to distribute copies of the work to the public
• The right to publicly perform the copyrighted work
• The right to publicly display the copyrighted work
• (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

III.  The Right to Prepare Derivative Works

A derivative work starts with a pre-existing, copyrighted work.  A different author then recasts, transforms, or adapts it to create something new and original.  The exclusive right to prepare derivative works is also known as the adaptation right.  As an exclusive right, the copyright owner of the pre-existing work alone has authority to prepare derivative works.  Derivative rights also tend to overlap with the reproduction right because you’re reproducing a part of the original in the derivative work.  The derivative right exists primarily to prevent others from stealing your ideas for their gain.  It also works, however, to stop others from changing the meaning of an original work unless they have the author’s permission.

Derivative works come in many shapes and forms.  Mona Lisa with a Moustache is a famous scholarly example, but films from Harry Potter to the Godfather are ripped from the pages of books.  Hip hop is rife with beats, samples, and lyrics taken from earlier songs (although this musical practice has been going on for ages).  Even the popular Ecards with sarcastic messages on Facebook are derivative works.  Adaption may also occur when there is a:

• Translation
  • Dramatization
• Fictionalization
• Editorial revisions
• Annotations
• Elaborations
• Abridgment

Compilations (musical or factual) are NOT derivative works, but can still enjoy copyright protection under a different part of the law.

Copyright protection extends to derivative works, just as it does to the original work.  This protection, however, only covers the new and original material added to a pre-existing work. There must also be a substantial difference between the new and original work.  Creating a derivative work doesn’t give that creator any ownership over the original work.  It also doesn’t enlarge or extend the copyright protection of the original work.  The following is an example to illustrate the point:

Mario Puzzo originally penned The Godfather as a book in 1962 by Mario Puzzo.  The book Godfather has copyright protection.  Francis Ford Coppala and Mr. Puzzo took this pre-existing work, with Mr. Puzzo’s permission, and adapted it into a screenplay.  The screenplay Godfather also has copyright protection as a derivative work, but only for the new and original material.  Mr. Coppala did not gain ownership rights to the book, and Mr. Puzzo did not get added time for his copyright to the book.  The 1972 movie Godfather, in turn, was a derivative work of the pre-existing screenplay with its own copyright protection.  The two Godfather sequels also were derivative works of screenplays (these screenplays also being derivative works of the original Godfather film).

Derivative works are very common to the entertainment industry.  We could create an equally complex scenario as the Godfather example above for many musical works.

As a finale note, people can potentially invade your right to prepare derivative if they’re making Fair Use of your copyrighted work.  In plain English, people can make limited, derivative copies of pre-existing works if it’s legitimately done for educational, commentary, criticism, parody, or other similar reasons.  Technically speaking, Mona Lisa with a Moustache would be a potential example of a parody that is also fair use (if copyright protected the original Mona Lisa).

The world of derivative works is an extraordinarily complex area of law and this article only touches upon its diversity.  Artists file lawsuits everyday claiming copyright infringement and derivative rights are a big part of the reason.  Just ask the label for the Harlem Shake.

What other current and popular work out there can you think that may violate a creator’s derivative right?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.