Derivative and Transformative Works: What’s the Difference?

In the world of intellectual property, and particularly with copyrights, not everything is a direct copy. In many cases, when someone uses someone else’s copyrighted works, the original work is changed or altered somehow or used in a different way or light, or else, used as part of a larger work.

These are called derivative or transformative works and as the name implies, they are works that come from or derive from an original, copyrighted work, but modifications or alterations have been made.

Derivative Works

There is the widespread belief that so long as you make some kind of change or alteration to a copyrighted work, the work is derivative and thus you can use the original copyrighted work without fear of infringement.

But that’s not true; the owner of a copyright doesn’t just own the work, but he or she also owns any and all derivative works that come from, or stem from, or which use in full or in part the original copyrighted work.

Derivative works still need to be copyrighted themselves. So, for example, the characters in Star Wars are obviously all copyrighted. When they made the sequel, Empire Strikes Back, the characters in the sequel were still copyrighted, but the new script, new characters, new story, and other details unique to the sequel, still needed to be copyrighted to be fully protected.

Licensing Derivative Works

It is possible for someone who owns a copyright to give permission to someone else to make a derivative work. So, for example, if you own a copyright to a song, you can give a license to another songwriter to use a beat or melody in your song, for use in a new song.

Transformative Works

Transformative works are similar to derivative works, but they alter the original copyrighted work so significantly that they create a new work, with its own meaning or message. The new work is so different, that it may avoid actual infringement.

So, for example, using Darth Vader in your movie may be infringement, but putting a clip of Darth Vader into a documentary about the unknowns of space travel, may be considered transformative, and thus, allowable.

Note that in most cases transformative works don’t cause any financial harm to the original copyright owner.  The owner of the Darth Vader copyright, in the example above, isn’t losing any sales, just because a short clip of the character appears in the science documentary. Darth Vader was also not created for the purpose of educating anybody about space travel, and thus, putting the character in a documentary would transform Darth Vader’s original use, message, or meaning.

Satire, ridicule or parody often qualifies as transformative, where the original copyrighted work is used.

Avoid getting in trouble when using intellectual property, or protect your own intellectual property. Call the West Palm Beach commercial litigation lawyers at Pike & Lustig today if you have a copyright or intellectual property or infringement case.

Source:

authorsalliance.org/2024/10/07/what-is-derivative-work-in-the-digital-age/