Derivatives must be transformative
U.S. Copyright Law is all about protecting creators’ works in order to offer incentive to these creators so that they keep on producing works for the good of society. So it seems that building on an existing work such as a play, poem, song, or film would be blessed in the eyes of our lawmakers. Such action could be viewed as good for society, right? Sometimes derivatives can be a good thing.
Once in a great while such an action is sanctioned. If a work is judged in a court of law as truly “transformative,” it will receive the blessing of “exception to the rules.” For example, creating a parody is seen as creating a work based on another work but in such a way as to produce something entirely new. A parody is often a work that imitates another work for humorous or satirical effect. It usually comments on or criticizes a preexisting work. A parody of a copyrighted work is sometimes determined in a court of law to be a Fair Use. But not always. Some think that using a work to create a humorous piece is creating a parody. Remember that to pass muster in court the new work must be more than funny. It must be truly transformative. For a more detailed explanation and examples of parody, see our book Copyright Clearance for Creatives, pages 19, 147 and 148. An extensive discussion of parody also can be found at legalonline.blogspot.com.
And don’t assume that once you have permission to change the original in some clearly defined way, you may make changes other than the ones you are granted the right to make. For example, if you have acquired permission to colorize a black and white photo and place it on an inside page of your book, don’t assume you have the right to place that colorized (or black and white) photo on the cover of your book.
If you have permission to place 3 lines of another’s poem in stanza 5 of your poem, don’t assume you can change your mind and place the borrowed lines in stanza one without permission to do so.
And what about copyright on your new work containing the work belonging to others? In the US copyright exists from the time the work is created so you own the copyright on all parts of the new work that you created but not on the lines you borrowed.
A source that is often used today for borrowing copyrighted works is Creative Commons. If you use a work with a Creative Commons license, be sure to check the license to see if it allows you to make derivatives before doing so. There are various Creative Commons licenses and not all allow for creating derivatives.
Building on another’s work is nothing new. It has been done for centuries and it has not always required asking permission. But just remember that copyright law in the US today protects the rights of the creator in such a way that requires wise borrowers to get permission before laying the foundation for their project.
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