Derivative works – when do I need permission? – Robert Pugh used with permission
Part of our copyright law series
Copyright gives the owner the right to:
Reproduce the work Distribute copies of the work to the public Perform the work publicly Display the copyrighted work publicly Prepare derivative works based upon the work
What is a Derivative work?
A derivative work is any new, original product that includes aspects of a pre-existing, copyrighted work. Also known as a “new version,” derivative works can include a painting based on a photograph, a photograph of a painting, a sculpture based on a drawing, a painting or photograph of a sculpture, as well as many other ‘variations’.
A work is derivative if it incorporates any copyrightable material. For example, if you painted an illustration based on a book or poem, the new work would be considered a derivative work under copyright law.
A new work is only classified as new, not derivative, if it does not actually incorporate any copyrightable material from that preexisting work.
Who Can Produce Derivative Works?
Only the original copyright owner has the right to produce, and profit from, an original work by making a new derivative work. Only a copyright owner can give permission to someone else to make a derivative work based on the original. If permission is not granted, the secondary work is considered to be a copy of the original. This makes the new work’s originator liable for copyright infringement.
Courts are unpredictable in their interpretations of ‘derivative’, particularly in the area of exactly where the line between ‘derivative’ and ‘transformative’ lies (transformative works are generally considered ‘new and original’)
However it pays to err on the side of caution as some artists have paid dearly for not securing the correct permissions before making a derivative – In 1985, the artist Jack Mendenhall painted a mural based on a photograph originally taken by advertising photographer Hal Davis. A US federal court awarded Davis $11,000 in damages, $4,000 in legal fees, and granted him the painting’s copyright. Davis was also entitled to compensation for all future use of Mendenhall’s mural!
Basic rule is – if you’re not sure, get permission first.
A common-sense way to look at it – when your ‘new’ work is finished, stand back and look at it carefully…..ask yourself the question ‘Does this painting, or any part of it, look like a copy?
If the answer is yes, then you should get permission from the original artist to use or display it.
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