Asked in Copyright

Q: What is a derivative art work? If I do some additions to an existing art work of some artist and make a derivative.?

If I make a derivative of an existing art work will that be my copyright or fair use of copyright .?

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1 Lawyer Answer

Mark A. Baker

Answered
  • Intellectual Property Lawyer
  • Tallahassee, FL

A: Among other rights, the Copyright Act of 1976 (17 U.S. Code § 106) provides the copyright owner the exclusive right . . . “(2) to prepare derivative works based upon the copyrighted work * * *.” Derivative works are based on or derived from one or more already existing works. Copyright Office Circular 14 (https://www.copyright.gov/circs/circ14.pdf) is helpful in understanding the nature of a derivative work. It is critical to understand that the rights to make derivative works belong to the owner (or his licensee/assignee) of the copyright.

You’ve asked, will your new work be exempted from copyright infringement because it is a “fair use” of the original? Unfortunately, there is no black and white test to determine with certainty whether a new work is a derivative of the original (and only the copyright owner may legally make a derivative work) or a fair use of the original, which is not a copyright infringement.

There’s no better online resource to understanding the scope and limitations of the fair use doctrine than the Stanford University Libraries’ “Copyright and Fair Use” treatise (https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/). In the past several years, courts have tended to focus the inquiry into whether the original copyrighted work that was used has been “transformed” by adding new expression or meaning, or has been given value by creating new information, aesthetics, insights, and understandings. If your new work is not “transformative” of the original, then a court would likely find it to be a derivative work, which is an infringement of the copyright owner’s exclusive rights to make derivative works.

The legal information herein should not be relied upon by you. But you should consult competent legal counsel for an opinion whether your new works are a fair use of an original copyright work.

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