We creatives know there is nothing new under the sun. We know that art and literature thrive, in part, because creatives in these fields have so much wonderful work from which they may glean ideas for new works. And there is much public domain content that can be used to legally create derivatives. A derivative work is a work based on or derived from one or more already existing works. A derivative work is also known as a “new version.”
However, one of the exclusive rights given to a copyright holder is the right to make derivatives of his/her work. This exclusivity disallows others from copying the copyrighted work in order to create a new work, possibly in a different form—disallows, that is, except in rare cases where fair use may apply.
It’s important to remember then, that although building on past creativity is often a necessary and acceptable activity, this fact does not in many cases excuse direct copying of another’s copyrighted work without permission—even when copying only a small portion or copying from one medium to another. Gaining inspiration from another’s work that moves one to create something new and unique is not copying.
And copying a work that is now in the public domain and changing it, thus creating a derivative, is also, in most cases, perfectly legal and socially acceptable. But taking a screenshot from a movie that still is in copyright and making a painting that reproduces the scene, placing a still of the shot or the painting of the shot in a billboard advertisement, or placing it on a T-shirt or on a website is copying from one medium into another. Taking a short story still in copyright and creating a musical or a play based on it is copying from one medium into another, and it is making a derivative. Taking a print work and producing an online version or an e-book from it is creating a derivative. Taking two lines of copyrighted song lyrics and placing them in a poem or on a work of visual art could be considered creating a derivative. Such practices carried out without clearance of rights can be viewed as intellectual property theft or copyright infringement.
Copyright law does not allow for copying from someone else’s copyrighted work created in one medium into another medium without the copyright owner’s permission.
Another example of illegal copying from one medium into another that many do not imagine to be an infringement is the act of copying a photograph from a field guide into an illustration. The photo cannot legally be directly copied as an illustration without permission from the copyright owner of the photograph without the risk of an infringement claim being made against the copier. A painting or a photograph cannot legally be “recreated” as a sculpture without permission. A collage that includes small but recognizable portions of copyrighted work created by others could be found in a court of law to be an infringement.
Case in point: The subject of a photo used on post cards was copied into another medium—a sculpture. The artist was found to have infringed on the photographer’s copyright. Click here for a discussion of the case.
Relying on past works for inspiration is an important part of the creative process for most of us, whether we are writers, artists, illustrators, or photographers. We just need to remember that it can be very risky to publish a work based on and copied from another’s work if that work is still in copyright, even though and maybe especially because we create the new published work in another medium.
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