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About Writing Right: The Blog

ARE DERIVATIVE WORKS LEGAL?

Someone asked the other dayif he could legally write a sequel to an existing work. Of course, he received a predictably muddled and incorrect response from one resondent in particular, who went out of her way to define what a derivative work is and what writing one entails--incorrectly, of course. Here's how I broached the subject.

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Well, the Queen of Wrong missed the boat yet again. Funny how often it sails away without her!

 

The truth is that copyright laws pertaining to derivative works and whether or not an author can create a sequel based upon an original, copyrighted work are complex and can't be answered with a glib, and inaccurate, "No!" Giving such an answer is irresponsible and harmful to the world of truth and reality, not to mention the derivative work's author and his or her potential for success. Who would have guessed?

 

So, with Queenie's misinformation out of the way, here's what the U.S. copyright office has to say about the subject.

 

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new, creative material. Making minor changes or additions of little substance to a preexisting work will not qualify that work as a new version eligible for copyright protection. The new material must be original and copyrightable in itself. Titles, names, short phrases, and common descriptions, greetings, and other usages are not copyrightable.

 

But remember that the statutory definition is incomplete, according to intellectual property sources, because the concept of derivative work must be understood in regard to case law. In other words, court cases define and clarify the law as it pertains to derivative works and copyright law and not the other way around. Three major copyright law issues arise concerning derivative works: (1) what acts are sufficient to cause a copyright-protected derivative work to come into existence; (2) what acts constitute copyright infringement of a copyright in a copyright-protected work; and (3) in what circumstances is a person otherwise liable for infringement of copyright in a copyright-protected derivative work excused from liability by an affirmative defense, such as fair use?

 

For copyright protection to attach to a later, purportedly derivative work, that work must contain original work itself. It can't be a word-for-word copy of the original work, of course. It must be able to stand on its own creative (pronounced original) two feet. How much is legally defined as "original" is, of course, where legal interpretations come into play and court decisions hold sway. The derivative work must contain sufficient new material beyond that expressed in the original work for the derivative to satisfy copyright law's requirement of originality.

 

In short, derivative works can and often are considered original creations by the derivative author's own hand, and they are therefore also copyrightable, just as the original work was. For a respondent here to mislead you into thinking otherwise is shameful, self-serving, and potentially damaging.

 

By the way, if I were going to create a derivative work of, say Star Wars or The Lion King, I'd make damned sure I had a legal opinion from an intellectual rights attorney as to my right to do so. Sometimes, while the characters in a film aren't copyrightable, they may be trademarked, the violation of which could also land an author in hot water. Violating registered trademark, just as in violating copyright, is a serious thing and should be taken seriously. Personally, I strongly suggest you do so. Until then ...

 

Smoke if you've got 'em.

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D. J. Herda is author of the new series of writing advice, About Writing Right, available in eBook, paperback, and hardcover formats at Amazon and at fine booksellers everywhere. You can check out his column, "The Author-Ethicist," which runs weekly at Substack. Well, almost weekly. Occasionally weekly. Sometimes weekly. (Hey, he's only human!)

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