Derivative Work

Part 3: Use
3.8 Derivative Works

How much of someone else’s work can I use without getting permission?

“Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.”
U.S. Copyright Office, FAQ

How much do I have to change in order to claim copyright in someone else’s work?

“Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another’s work, no matter how much you change it, unless you have the owner’s consent.”
U.S. Copyright Office, FAQ

“..protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.”
17 USC §103(a)

Can I use a photo that is in the public domain?

“A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material. Neither will it prevent anyone else from using the same public-domain work for another derivative work.”
U.S. Copyright Office, Circular 14

If I use a photo that is in the public domain, does my copyright stop other people from using that photo?

“.. the copyright in the derivative work will not .. prevent anyone else from using the same public-domain work for another derivative work.”
U.S. Copyright Office, Circular 14

Can I use a copyrighted photo in my artwork?

“Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

Can I use a photo that is in the public domain?

“A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material. Neither will it prevent anyone else from using the same public-domain work for another derivative work.”
U.S. Copyright Office, Circular 14

“The subject matter of copyright as specified by section 102 includes compilations and derivative works..”
17 USC §103(a)

“The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”
17 USC §103(b)

“..protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.”
17 USC §103(a)

What is a “derivative work”?

“A derivative work is a work based on or derived from one or more already existing works.”
U.S. Copyright Office, Circular 14

Can I copyright a derivative work?

“.. a derivative work is copyrightable if it includes what copyright law calls an “original work of authorship.” .. To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material.”
U.S. Copyright Office, Circular 14

If I make small changes, does that count?

“Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and formatting are not copyrightable.”
U.S. Copyright Office, Circular 14

Can I copyright a drawing of an old photo?

“[An example of a derivative work is a] Drawing (based on a photograph)”
U.S. Copyright Office, Circular 14

What does a copyright of a derivative work cover?

“The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. It does not extend to any preexisting material and does not imply a copyright in that material.”
U.S. Copyright Office, Circular 14

Can I use a photo that is in the public domain?

“A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material. Neither will it prevent anyone else from using the same public-domain work for another derivative work.”
U.S. Copyright Office, Circular 14

If I use a photo that is in the public domain, does my copyright stop other people from using that photo?

“.. the copyright in the derivative work will not .. prevent anyone else from using the same public-domain work for another derivative work.”
U.S. Copyright Office, Circular 14

If I make an image using a copyrighted photo without getting permission, do I still get copyright?

“.. where a protected work is used unlawfully, that is, without the permission of the copyright owner, copyright will not be extended to the illegally used part.”
U.S. Copyright Office, Circular 14

If I republish an old book, what copyright notice should I include?

“For works published on or after March 1, 1989, use of copyright notice is optional. Although not required by law, it is perfectly acceptable (and often helpful) for a work to contain a notice for the original material as well as for the new material. For example, if a previously registered book contains only a new introduction, the notice might be © 1941 John Doe; introduction © 2008 Mary Smith.”
U.S. Copyright Office, Circular 14

“the unauthorized reproduction of a copyrighted photograph whether [by another photo] or any other medium is an infringing copy.”
— Epic Metals Corp. v. Condec, Inc. 867 F. Supp. 1009 (M.D. Fla. 1994).

“Defendants may copy the ideas presented by the Plaintiff’s photos, but may not simply make copies of the photograph.”
— Time, Inc. v. Barnard Geis Assoc., 293 F. Supp. 130 (S.D.N.Y. 1968).

“An artist may avoid infringement by intentionally making sufficient changes so that the works at issue undercut substantial similarity.”
— Warner Bros. v. ABC, 720 F.2d 231, 241 (2d Cir. 1983).

“[the test is] whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”
— Ideal Toy Corp. v. Fab-Lu Ltd., 360 F. 2d 1021, 1022 (2d Cir. 1966).

Next: Permission »

Comments

Comments


Reply by Anonymous

May 5, 2015

If I use a royalty stock image that I paid for from a stock image site, lets say it is a photo of a dog and I want to turn him into part robot and add some other elements, can I then say it is my work?


Reply by Andrew Hudson, PhotoSecrets

May 19, 2015

ROBOT DOG

Hi,

Well done for paying to use the stock image. When you paid, you agreed to a contract (license). Often such contracts require a credit line (attribution) for the photographer and the stock agency. A typical attribution would be “Name of Artist/Name of Agency”. So, by the terms of your license, you would probably not be able to say it is entirely your work. Legally, the creative part that you added is your copyrighted work (as a “derivative work”), so you could say that the finished art is your work based on (or derived from) the original work.

Hope that helps!


Reply by Aeprovost@yahoo.com

January 16, 2014

I want to make shadow puppet type cuts of various things to illustrate a booklet I’m making. Would I be infringing copyright if I use photos and other illustrations as my inspiration or pattern? Does it make a difference if I free cut vs. tracing? The cuts I’m making are in black paper with no details and they are not identical to the original images as I usually change a few things in the process to simplify or make the image look better.


Reply by Andrew Hudson, PhotoSecrets

January 16, 2014

Hi

You might be OK, as your work sounds to be “transformative.” I need to add a section about that. Generally, the more your transform the artwork (giving it “new expression, meaning or message”), the more your use becomes fair use.

“Although [a finding of] transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. ”

— Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994).

For more information, here is a good article.


Reply by Carol

January 12, 2014

What percentage of a public domain photo must be change in order for it to be considered a derivative?


Reply by Andrew Hudson, PhotoSecrets

January 13, 2014

Hi Carol:

There is no fixed percentage, each situation is judged on its own merits. You generally get copyright to the creativity that you add.

For more info, see:

Originality,

Copyright case law: Originality


Reply by Andrew Hudson, PhotoSecrets

January 13, 2014

Hi Carol:

There is no fixed percentage, each situation is judged on its own merits. You generally get copyright to the creativity that you add.

For more info, see:


Reply by NICK MCNUTT

March 11, 2013

Hello! I have a book I purchased that has many postcard pictures of the early 1900’s.Is it legal to copy and enlarge these for display in my store.I’m not going to sell them!The pic;s are of our hometown and I think everyone should appreciate them.Thanking you! Nick.


Reply by Andrew Hudson, PhotoSecrets

March 12, 2013

POSTCARD PICTURES

Hi Nick,

Probably yes. Photos taken prior to 1923 are in the public domain (they are not protected by copyright) and anyone can use them for any purpose.

Andrew


Reply by Mark

September 22, 2012

If I take a frame from a film that is public domain and use it on t-shirts, is that a derivative and ok to sell. Plus can I use parts of a frame from a public domain movie in another movie which I am doing?


Reply by Andrew Hudson, PhotoSecrets

October 26, 2012

FRAME FROM A PUBLIC DOMAIN FILM

If an artwork is in the public domain, then you can do whatever you like with it, as though it is your film. So taking a frame and using part of the image on a T-shirt would be OK. Note that other laws may apply, such as privacy rights.


Reply by Tam

July 12, 2012

Hello, I have a question. If I take a picture of odds an ins in my home, for example fruit in a basket, then I put special effects on said photo, is this legal to copyright? The program where the special effects comes from is a free IPhone app.


Reply by Nick

June 3, 2012

If I have taken a picture of a statue and incorporate that picture into my own photo montage/collage, publish and sell my montage or collage, am I infringing on copyright?


Reply by Andrew Hudson, PhotoSecrets

June 27, 2012

Yes. That is a derivative work, so you need to get permission from the sculptor.


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