copyright law A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
, a derivative work is an expressive creation that includes major copyrightable elements of an
original Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
Translation Translation is the communication of the meaning of a source-language text by means of an equivalent target-language text. The English language draws a terminological distinction (which does not exist in every language) between ''transl ...
s, cinematic adaptations and
musical arrangement In music, an arrangement is a musical adaptation of an existing composition. Differences from the original composition may include reharmonization, melodic paraphrasing, orchestration, or formal development. Arranging differs from orchest ...
s are common types of derivative works. Most countries' legal systems seek to protect both original and derivative works. They grant authors the right to impede or otherwise control their integrity and the author's commercial interests. Derivative works and their authors benefit in turn from the full protection of copyright without prejudicing the rights of the original work's author.



Berne Convention for the Protection of Literary and Artistic Works The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
, an international copyright treaty, stipulates that derivative works shall be protected although it does not use the term, namely that "Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work".

United States

An extensive definition of the term is given by the United States Copyright Act in :
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. 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".
The copyright in a compilation or 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. The 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.
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies...; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies...of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending....

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.
The statutory definition is incomplete and the concept of derivative work must be understood with reference to explanatory
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a le ...
. Three major copyright law issues arise concerning derivative works: (1) what acts are sufficient to cause a copyright-protected derivative work to come into existence; (2) what acts constitute copyright infringement of a copyright in a copyright-protected work; and (3) in what circumstances is a person otherwise liable for infringement of copyright in a copyright-protected derivative work excused from liability by an affirmative defense, such as first sale or
fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...

European Union

French law prefers the term "œuvre composite" ("composite work") although the term '"œuvre dérivée" is sometimes used. It is defined in article L 113-2, paragraph 2 of the Intellectual Property Code as "new works into which pre-existing work s incorporated without the collaboration of its author". The Court of Cassation has interpreted this statute as requiring two distinct inputs at different points in time.Bellefonds (2002:147,148) The
Court of Justice of the European Union The Court of Justice of the European Union (CJEU) (french: Cour de justice de l'Union européenne or "''CJUE''"; Latin: Curia) is the judicial branch of the European Union (EU). Seated in the Kirchberg quarter of Luxembourg City, Luxembourg ...
in 2010 decided on a matter of derivative works in Systran v. European Commission (Case T‑19/07). However, it was overturned in 2013 based on the conclusion that the case did not fall within the General Court's jurisdiction, after concluding that the dispute had been of a contractual nature, instead of a non-contractual one.


Canadian copyright law The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain ...
does not explicitly define "derivative work", the
Copyright Act of Canada The ''Copyright Act'' of Canada is the federal statute governing copyright law in Canada. It is jointly administered by the Department of Industry Canada and the Department of Canadian Heritage. The ''Copyright Act'' was first passed in 1921 and ...
does provide the following generally agreed-upon examples of what constitutes a derivative work i
section 3
"copyright"...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
In '' Théberge v. Galerie d'Art du Petit Champlain Inc.'', , the Supreme Court of Canada clarified the statutory recognition of derivative works extended only to circumstances where there was production ''and'' multiplication, i.e. ''reproduction''. Where there is no derivation, reproduction, or production of a new and original work which incorporates the artist's work, there is no violation of the Copyright Act.

Significance, history and social context

Derivative works represent the majority of the human cultural, scientific and technological heritage, as exemplified by the proverb about "
standing on the shoulders of giants The phrase "standing on the shoulders of giants" is a metaphor which means "using the understanding gained by major thinkers who have gone before in order to make intellectual progress". It is a metaphor of dwarfs standing on the shoulders o ...
." The number of derivative works has been adversely impacted by the introduction of the copyright law, which made them illegal in numerous circumstances, and positively by the spread of the
copyleft Copyleft is the legal technique of granting certain freedoms over copies of copyrighted works with the requirement that the same rights be preserved in derivative works. In this sense, ''freedoms'' refers to the use of the work for any purpose, ...
ethos Ethos ( or ) is a Greek word meaning "character" that is used to describe the guiding beliefs or ideals that characterize a community, nation, or ideology; and the balance between caution, and passion. The Greeks also used this word to refer to ...
in the last 20th and early 21st century.

Application of derivative-work copyright

Originality requirement

For copyright protection to attach to a later, allegedly derivative work, it must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The latter work must contain sufficient new expression, over and above that embodied in the earlier work for the latter work to satisfy copyright law's requirement of
originality Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion ...
. Although serious emphasis on originality, at least so designated, began with the Supreme Court's 1991 decision in '' Feist v. Rural'', some pre-''Feist'' lower court decisions addressed this requirement in relation to derivative works. In ''Durham Industries, Inc. v. Tomy Corp.'' and earlier in ''L. Batlin & Son, Inc. v. Snyder''. the Second Circuit held that a derivative work must be original relative to the underlying work on which it is based. Otherwise, it cannot enjoy copyright protection and copying it will not infringe any copyright of the derivative work itself (although copying it may infringe the copyright, if any, of the underlying work on which the derivative work was based). The ''Batlin'' case rested on the copyrightability of an "Uncle Sam" toy bank, first copyrighted in 1886. These toys have Uncle Sam's extended arm and outstretched hand adapted to receive a coin; when the user presses a lever, Uncle Sam appears to put the coin into a carpet bag. One maker of these banks, Jeffrey Snyder, had filed a copyright on such a bank in 1975, planning to import them for the American Bicentennial. Shortly thereafter, another company, L. Batlin & Sons, Inc., also began making a very similar toy bank which was based on Snyder's version (and not, incidentally, on the 19th century original). When the latter attempted to import the toy banks, the US Customs service notified them that they appeared to be infringing on Snyder's copyright, and would not allow the toy banks to be imported. Batlin then got an injunction against Snyder to deny the recording of his copyright and allowing them to import their banks. On appeal to the Second Circuit Court, Snyder took great pains to demonstrate how his banks varied in size and shape from the 19th century original, arguing that his banks, though similar to the older work, differed in a number of significant ways and warranted protection under a new copyright. However, his appeal was denied and the injunction against Snyder's copyright upheld (six members of the court voted to deny, the other three filing a dissenting opinion). Much of this decision focused on the fact that nearly all of the alterations in Snyder's version were made solely to allow the object to be more easily manufactured in plastic rather than metal, and therefore were functional, not artistic or creative. "To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work." The issue was not whether or not Batlin's bank was a copy of Snyder's— it undoubtedly was— but whether or not Snyder could claim copyright protection, which the court decided he could not. In the subsequent ''Durham'' case, the court applied the same principle in a suit between two different Disney toy licensees in which one licensee claimed that the other had pirated his
Mickey Mouse Mickey Mouse is an animated cartoon character co-created in 1928 by Walt Disney and Ub Iwerks. The longtime mascot of The Walt Disney Company, Mickey is an anthropomorphic mouse who typically wears red shorts, large yellow shoes, and whi ...
Donald Duck Donald Fauntleroy Duck is a cartoon character created by The Walt Disney Company. Donald is an anthropomorphic white duck with a yellow-orange bill, legs, and feet. He typically wears a sailor shirt and cap with a bow tie. Donald is known fo ...
Pluto Pluto (minor-planet designation: 134340 Pluto) is a dwarf planet in the Kuiper belt, a ring of bodies beyond the orbit of Neptune. It is the ninth-largest and tenth-most-massive known object to directly orbit the Sun. It is the largest k ...
. Durham conceded that in making these toys it used Tomy's Disney figures as models. That was not determinative. The court said that "the only aspects of Tomy's Disney figures entitled to copyright protection are the non-trivial, original features, if any, contributed by the author or creator of these derivative works." But Tomy's toys reflected "no independent creation, no distinguishable variation from preexisting works, nothing recognizably the author's own contribution that sets Tomy's figures apart from the prototypical Mickey, Donald, and Pluto, authored by Disney and subsequently represented by Disney or its licensees in a seemingly limitless variety of forms and media." Because the court considered that "it is clear that the originality requirement imposed by the Constitution and the Copyright Act has particular significance in the case of derivative works based on copyrighted preexisting works," it denied relief and dismissed the claim. Thus the law is clear that a derivative work is protectable only to the extent that it embodies original expression. Its non-original aspects are not copyright-protectable (what is loosely called "uncopyrightable"). In both of these cases, the defendants were held not to be liable for copyright infringement, even though they presumably copied a considerable amount from the plaintiff's work. They were not liable because the plaintiff did not enjoy copyright protection. The plaintiffs' works lacked enough originality to acquire copyright protection of their own. They were too close to the original works on which they were based.

Lawful works requirement

Copyright ownership in a derivative work attaches only if the derivative work is lawful, because of a license or other "authorization." The U.S. Copyright Office says in its circular on derivative works:
In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully.
The courts have so far addressed little attention to the issue of lawful (i.e., not unlawful) use without authorization, as in fair-use cases such as the ''Pretty Woman'' case. Recently, however, in ''Keeling v. Hars'', the Second Circuit held that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient original content, the original contributions in such an unauthorized derivative work are protectable under the Copyright Act. In that case, the plaintiff created a parody stage adaptation of a motion picture, without authorization.

Liability of derivative-work

This issue sometimes arises in the context of the defendant purchasing a copy of a picture or some other work from the copyright owner or a licensee and then reselling it in different context. For example, pictures from greeting cards might be affixed to tiles or one kind of textile product might be turned into another that can be sold at a higher price. In ''Lee v. A.R.T. Co.'', (the ''Annie Lee'' case), the defendant affixed the copyright owner's copyright-protected note cards and small lithographs to tiles and then resold them. The original art was not changed or reproduced, only bonded to ceramic and sold. The court held that this act was not original and creative enough to rise to the level of creating a derivative work, but effectively similar to any other form of display or art frame. Distribution rights differ from reproduction rights. While the
first-sale doctrine The first-sale doctrine (also sometimes referred to as the "right of first sale" or the "first sale rule") is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellec ...
entitles the copyright holder to begin the distribution chain of a copyrighted work - by selling note cards, for instance, or giving them away - it does not permit the copyright holder to control what is done with the item after it is distributed. Unless there is a separate contract between the parties, the person who owns the object has the right to give it away or resell it themself. In the case of ''Lee v. A.R.T.'', since bonding the cards to ceramic did not create a derivative work, A.R.T. Co. was legally within their rights to resell the cards in such a fashion. When the defendant's modification of the plaintiff's work is ''
de minimis ''De minimis'' is a Latin expression meaning "pertaining to minimal things", normally in the terms ''de minimis non curat praetor'' ("The praetor does not concern himself with trifles") or ''de minimis non curat lex'' ("The law does not concern i ...
'', too insubstantial to "count", there is no infringing preparation of a derivative work. So long as there is no derivative work, there is no infringement—since no conduct that the Copyright Act forbids has occurred.

Fixation requirement

In a House Report, Congress said:
The exclusive right to prepare derivative works, specified separately in clause (2) of section 106, overlaps the exclusive right of reproduction to some extent. It is broader than that right, however, in the sense that reproduction requires fixation in copies or phonorecords, whereas the preparation of a derivative work, such as a ballet, pantomime, or improvised performance, may be an infringement even though nothing is ever fixed in tangible form.
The 9th Circuit, however, has resisted this expansive view of liability for derivative works by imposing its own quasi-fixation requirement. In '' Micro Star v. FormGen Inc.'' Judge Kozinski wrote:
To narrow the statute to a manageable level, we have developed certain criteria a work must satisfy in order to qualify as a derivative work. One of these is that a derivative work must exist in a "concrete or permanent form,"....The requirement that a derivative work must assume a concrete or permanent form was recognized without much discussion in ''Galoob''.

The fair use defense in derivative work cases

Even if a work is found to be an unauthorized derivative work, an alleged infringer can escape liability via the defense of
fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
. For example, in ''
Campbell v. Acuff-Rose Music, Inc. ''Campbell v. Acuff-Rose Music, Inc.'', 510 U.S. 569 (1994), was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use. This case established that the fact that money is made by a work do ...
'', the Supreme Court found that although a parody of the song "
Oh, Pretty Woman "Oh, Pretty Woman" or simply "Pretty Woman" is a song recorded by Roy Orbison, written by Orbison and Bill Dees. It was released as a single in August 1964 on Monument Records and spent three weeks at number one on the ''Billboard'' Hot 100 fr ...
" by
2 Live Crew 2 Live Crew is an American hip hop group from Miami, Florida, which had its greatest commercial success from the late 1980s to the early 1990s. The group's most well-known line up was composed of Luke Campbell, Fresh Kid Ice, Mr. Mixx, and B ...
was an unauthorized derivative work, fair use was still available as a complete defense. This case marked the Supreme Court's pointing to
transformativeness In United States copyright law, transformative use or transformation is a type of fair use that builds on a copyrighted work in a different manner or for a different purpose from the original, and thus does not infringe its holder's copyright. Tr ...
as a major clue to application of the fair use defense to derivative works. The defense of fair use has become very important in computer- and Internet-related works. Two 1992 Ninth Circuit decisions are illustrative. In '' Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.'', the appellate court held that it was a fair use for owners of copies of video games, such as ''
Super Mario Bros. is a platform game developed and published by Nintendo for the Nintendo Entertainment System (NES). The successor to the 1983 arcade game '' Mario Bros.'' and the first game in the ''Super Mario'' series, it was first released in 1985 for t ...
'', to use Galoob's product the
Game Genie Game Genie is a line of video game cheat cartridges originally designed by Codemasters, sold by Camerica and Galoob. The first device in the series was released in 1990 for the Nintendo Entertainment System, with subsequent devices released for th ...
to customize the difficulty or other characteristics of the game by granting a character more strength, speed, or endurance. Nintendo strongly opposed Galoob's product, allegedly because it interfered with the maintenance of the "Nintendo Culture," which
Nintendo is a Japanese multinational video game company headquartered in Kyoto, Japan. It develops video games and video game consoles. Nintendo was founded in 1889 as by craftsman Fusajiro Yamauchi and originally produced handmade playing cards. ...
claimed was important to its marketing program. The court held, among other things, that the fair use defense shielded Galoob's conduct. The court said that "a party who distributes a copyrighted work cannot dictate how that work is to be enjoyed. Consumers may use ... a Game Genie to enhance a Nintendo Game cartridge's audiovisual display in such a way as to make the experience more enjoyable." In '' Sega Enterprises, Ltd. v. Accolade, Inc.'', the court excused Accolade from copyright infringement liability on fair use grounds. Nintendo and
Sega is a Japanese multinational video game and entertainment company headquartered in Shinagawa, Tokyo. Its international branches, Sega of America and Sega Europe, are headquartered in Irvine, California and London, respectively. Its divisio ...
produced video game consoles. Each stored the games in plastic cartridges that provided game data to the consoles. By way of analogy, the Sega hardware console's "platform" differed from Nintendo's, as a
Macintosh The Mac (known as Macintosh until 1999) is a family of personal computers designed and marketed by Apple Inc. Macs are known for their ease of use and minimalist designs, and are popular among students, creative professionals, and software en ...
platform differs from that of a PC. Hence, a video game cartridge that works on one system does not work on the other. Sega and Nintendo sought to "license" access to their hardware platforms, and each company developed software "locks" to keep out cartridges that did not have the proper "key." Accolade sought a license from Sega for its key, but negotiations broke down over price. Accolade then decided to reverse engineer Sega's lock and key system. To do so, it had to download (copy) all of the computer code from Sega's product and disassemble it (translate it from machine code into human-readable assembly). Accolade succeeded and began to market new video games that it independently wrote, which were capable of being operated in Sega consoles. This led to copyright infringement litigation, in which Sega alleged that the downloading was improper copying (reproduction) of Sega's code. The court held that Sega was trying to use the copyright in its computer code to maintain a monopoly over the sale of video games, to which it was not legally entitled. Accolade downloaded the computer code only to ascertain how the lock worked, so that it could make a key that would permit its games to work in Sega consoles. The court held that such a use was fair use: "We conclude that where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law." However, note that since the passage of the anti-circumvention statutes contained in the DMCA, further court cases involving the fair-use defense of such activities have yet to be actually litigated.


A crucial factor in current legal analysis of derivative works is ''transformativeness'', largely as a result of the Supreme Court's 1994 decision in ''
Campbell v. Acuff-Rose Music, Inc. ''Campbell v. Acuff-Rose Music, Inc.'', 510 U.S. 569 (1994), was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use. This case established that the fact that money is made by a work do ...
'' The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "
Oh, Pretty Woman "Oh, Pretty Woman" or simply "Pretty Woman" is a song recorded by Roy Orbison, written by Orbison and Bill Dees. It was released as a single in August 1964 on Monument Records and spent three weeks at number one on the ''Billboard'' Hot 100 fr ...
" involved in the ''Campbell'' case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat how bland and banal the Orbison retty Womansong" is. The modern emphasis of transformativeness in fair use analysis stems from a 1990 article by Judge Pierre N. Leval in the ''
Harvard Law Review The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of 143 ...
'', "Toward a Fair Use Standard", which the Court quoted and cited extensively in its ''Campbell'' opinion. In his article, Leval explained the social importance of transformative use of another's work and what justifies such a taking:
I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ... fthe secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.
The concept, as Leval and the ''Campbell'' Court described it, developed in relation to fair use of traditional works: literary works, musical works, and pictorial works. But recently courts have extended this rationale to Internet and computer-related works. In such cases, as illustrated by '' Kelly v. Arriba Soft Corporation'' and '' Perfect 10, Inc. v. Amazon.com, Inc.'', the courts find a use (such as that of thumbnails in an image search engine, for indexing purposes) transformative because it provides an added benefit to the public, which was not previously available and might remain unavailable without the derivative or secondary use. The
Ninth Circuit Court The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District o ...
explained this in the ''Perfect 10'' case:
Google's use of thumbnails is highly transformative. In ''Kelly'' we concluded that Arriba's use of thumbnails was transformative because "Arriba's use of the images served a different function than Kelly's use — improving access to information on the Internet versus artistic expression." Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. Just as a "parody has an obvious claim to transformative value" because "it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one," a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.

…In conducting our case-specific analysis of fair use in light of the purposes of copyright, we must weigh Google's superseding and commercial uses of thumbnail images against Google's significant transformative use, as well as the extent to which Google's search engine promotes the purposes of copyright and serves the interests of the public. Although the district court acknowledged the "truism that search engines such as Google Image Search provide great value to the public," the district court did not expressly consider whether this value outweighed the significance of Google's superseding use or the commercial nature of Google's use. The Supreme Court, however, has directed us to be mindful of the extent to which a use promotes the purposes of copyright and serves the interests of the public.

…We conclude that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case. … We are also mindful of the Supreme Court's direction that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."
The Ninth Circuit's treatment of transformativeness and fair use in the ''Arriba Soft'' and ''Perfect 10'' cases illustrates different data points on the copyright infringement spectrum, at least with respect to transformativeness and fair use. ''Arriba Soft'' was a relatively polar case. The harm to Kelly, the copyright owner, was negligible; it was hardly more than hurt feelings, because as the Ninth Circuit said in its opinion – "Arriba's creation and use of the thumbnails he derivative workdoes not harm the market for or value of Kelly' s images." On the other hand, the court found that Arriba's use benefited the public: "Arriba's use of the images serves a different function than Kelly's use — improving access to information on the internet versus artistic expression." The balance thus tilted strongly in Arriba's favor. The foregoing analysis in this case thus made the Ninth Circuit to be the first court to make the equation ''highly beneficial to public = transformative'', and as the Supreme Court explained in ''Campbell'', the more transformative a derivative use the more likely the use is to be a fair use. The ''Campbell'' Court recognized that the balance may not always be one-sided, as it was in ''Campbell'' itself and in ''Arriba Soft''. In the ''Perfect 10'' case the interests were more evenly balanced, for the first time in a derivative work case involving new information technology. Both Google and Perfect 10 had legitimate interests at stake and support for their respective positions. Thus, there was a finding that "Google's wide-ranging use of thumbnails is highly transformative: their creation and display is designed to, and does, display visual search results quickly and efficiently to users of Google Image Search." But Google's use had some commercial aspects and was claimed to impair P10's commercial interests. Yet, on balance the Ninth Circuit found that the transformativeness outweighed the other fair use factors because "Google has provided a significant benefit to the public" in facilitating image searches by means of thumbnail images. This opinion provided a second instance of the "beneficial=transformative" equation described in the preceding paragraph (from the ''Arriba Soft'' case). The use of pop-up advertising, in which third-party advertisements pop up on a competitor's Web page and change its appearance to allegedly create a derivative work, may present transformativeness issues. The proponents of such pop-ups (the defendants in infringement litigation) argue that they provide the public with additional information about making buying decisions (particularly in the form of price comparisons), but the opponents (the plaintiffs in these cases) argue that the defendants' conduct adversely affects the Web page proprietor's interest in the "integrity" of its Web page and its investment interest in creating and maintaining the page. An example of promotional advertising for a pop-up company, illustrating various pop-up techniques for changing the appearance of another firm's Web page is shown i
this Flash
. Little attention has been paid to the balancing of the interests at stake in derivative work copyright disputes where conflicting interests are present. In the ''Perfect 10'' and ''Castle Rock'' cases, however, the courts appeared to have recognized that some conflict existed, but they finessed the balancing task by finding one side or the other's interest negligible, so that no serious work had to be done in gauging the balance. although several courts have found no copyright infringement for one reason or another. In an analogous area of copyright law, a solution reached was to permit the use challenged as infringement, but to require payment of a reasonable royalty.

Examples of derivative works under U.S. law

The most famous derivative work in the world has been said to be '' L.H.O.O.Q.'', also known as the ''Mona Lisa With a Moustache''. Generations of U.S. copyright law professors — since at least the 1950s — have used it as a paradigmatic example. Marcel Duchamp created the work by adding, among other things, a moustache, goatee, and the caption ' (letters which phonetically resemble the phrase in French "She is hot in the ass") to Leonardo's iconic work. These few seemingly insubstantial additions were highly transformative because they incensed contemporary French bourgeoisie by mocking their cult of "Jocondisme," at that time said to be "practically a secular religion of the French bourgeoisie and an important part of their self image." Duchamp's defacement of their icon was considered "a major stroke of ''épater le bourgeois''." Thus it has been said that the "transformation of a cult icon into an object of ridicule by adding a small quantum of additional material can readily be deemed preparation of a derivative work." A parodic derivative work based on Duchamp's parodic derivative work is shown at thi
The mockery of "Oh, Pretty Woman," discussed in ''
Campbell v. Acuff-Rose Music, Inc. ''Campbell v. Acuff-Rose Music, Inc.'', 510 U.S. 569 (1994), was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use. This case established that the fact that money is made by a work do ...
'', is a similar example of transforming a work by showing it in a harsh new light or criticizing its underlying assumptions. Because of the parody's transformativeness, the Supreme Court found the derivative work a fair use. Trivia books based on TV shows, such as ''
Seinfeld ''Seinfeld'' ( ) is an American television sitcom created by Larry David and Jerry Seinfeld. It aired on NBC from July 5, 1989, to May 14, 1998, over nine seasons and 180 episodes. It stars Seinfeld as a fictionalized version of himself and f ...
'', are considered derivative works, for purposes of infringement liability, at least if they incorporate a substantial amount of copyright-protected content from the TV episodes. In ''Castle Rock'' the court found that any transformative purpose possessed in the derivative work was "slight to non-existent." Accordingly, the court held that defendants had prepared an infringing derivative work. A 2007 lawsuit, ''
CBS CBS Broadcasting Inc., commonly shortened to CBS, the abbreviation of its former legal name Columbia Broadcasting System, is an American commercial broadcast television and radio network serving as the flagship property of the CBS Entertainme ...
Operations v. Reel Funds International'', ruled that television series that have some episodes lapse into the public domain can be classified as derivative works and subject to indirect copyright accordingly. The lawsuit centered around 16 episodes of ''
The Andy Griffith Show ''The Andy Griffith Show '' is an American sitcom, situation comedy television series that aired on CBS from October 3, 1960, to April 1, 1968, with a total of 249 half-hour episodes spanning eight seasons—159 in black and white and 90 in colo ...
'' from the show's third season that had lapsed into the public domain in 1989; CBS successfully argued that because all of the episodes from the show's first two seasons were still under valid copyright, that CBS still held copyright on the characters used in those episodes and could block a public domain distributor from selling DVDs with those episodes. The musical ''
West Side Story ''West Side Story'' is a musical conceived by Jerome Robbins with music by Leonard Bernstein, lyrics by Stephen Sondheim, and a book by Arthur Laurents. Inspired by William Shakespeare's play ''Romeo and Juliet'', the story is set in the mid- ...
'', is a derivative work based on Shakespeare's ''
Romeo and Juliet ''Romeo and Juliet'' is a tragedy written by William Shakespeare early in his career about the romance between two Italian youths from feuding families. It was among Shakespeare's most popular plays during his lifetime and, along with ''Ham ...
'', because it uses numerous expressive elements from the earlier work. However, Shakespeare's drama ''Romeo and Juliet'' is also a derivative work that draws heavily from ''
Pyramus and Thisbe Pyramus and Thisbe are a pair of ill-fated lovers whose story forms part of Ovid's ''Metamorphoses''. The story has since been retold by many authors. Pyramus and Thisbe are two lovers in the city of Babylon who occupy connected houses. Their r ...
'' and other sources. Nevertheless, no legal rule prevents a derivative work from being based on a work that is itself a derivative work based on a still earlier work — at least, so long as the last work borrows expressive elements from the second work that are original with the second work rather than taken from the earliest work. The key is whether the copied elements are original and expressive (not merely conventional or '' mise en scène''); if that is so, the second or derivative work is independently subject to copyright protection, and if that is not, the second work (if unauthorized) may infringe the first, but it is not independently copyrightable.
Pop-up ad Pop-up ads or pop-ups are forms of online advertising on the World Wide Web. A pop-up is a graphical user interface (GUI) display area, usually a small window, that suddenly appears ("pops up") in the foreground of the visual interface. The pop-u ...
vertising provides derivative works that can be transformative, in that they provide the public with new functionality not previously offered — they may provide comparative price information, for example. Yet, pop-ups may also impair interests of the proprietors of Web pages subjected to them. For example, the
Half.com Half.com was an e-commerce website and a subsidiary of eBay in which sellers offered items for sale at fixed prices. The items available on half.com were limited to books, textbooks, music, movies, video games, and video game consoles. Half prov ...
pop-up ad shown above left informs the public as to price competition between Half.com and
Amazon.com Amazon.com, Inc. ( ) is an American multinational technology company focusing on e-commerce, cloud computing, online advertising, digital streaming, and artificial intelligence. It has been referred to as "one of the most influential economi ...
. But the derivative-work version of Amazon's web page partially covers up Amazon's advertising (at least temporarily) and adversely affects Amazon's investment interest in the preparation and maintenance of its web page. This may present a more difficult case of balancing interests than that which the court faced in ''Arriba Soft'' or ''Perfect 10.'' The gif animation parody o
Duchamp's work
referred to above in this section, and pop-up advertising are examples of derivative works that became possible only with the advent of recent technology. The last sentence of section 101's definition of derivative work (at the beginning of section 1.1 of this Article) defines ''annotations'' as derivative works. Annotations of other works have long existed, but new technology permits the creation of new forms of annotation. An illustration of such a new-technology annotation is provided in this example of an annotation o

to the Canterbury Tales, in which a small pop-up window provides the definition of a difficult word when the cursor is moused over the word.This is taken out of its context of a description of a notional derivative-work copyright infringement suit between Chaucer and a Professor Annotator, found a
L.H.O.O.Q.—Internet-Related Derivative Works

See also



*Bellefonds, Xavier Linant de, ''Droits d'auteur et Droits Voisins'', Dalloz, Paris, 2002

External links

US Copyright Act (Hosted by the Copyright Office)
* ttp://www.copyright.gov/circs/circ14.pdf "Copyright in Derivative Works and Compilations" (Hosted by the U.S. Copyright Office)br>Frequently Asked Questions (and Answers) about Derivative Works
Chillingeffects.org *Article
Geek Law: Derivative Works
by Lawrence Rosen, Linuxjournal.com *Article
by David M. Spatt, Artslaw.org *Article

" by Richard H. Stern *Article
Derivative Works
by Sarah Ovenall, Funnystrange.com {{DEFAULTSORT:Derivative Work Copyright law Fair use ja:二次的著作物