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Derivative Work Questions

What is derivative work?

According to United States copyright law, derivative work is a type of expressive creation that involves major copyright-protected elements of an original work. This is known as the original previously created first work or underlying work.

If a person has a historical display depicting Independence Hall with interpretations that is purely ones ideas and someone else only switches pieces around with nothing original added to it, would this be copyright infringement?

In most situations yes, this would be considered copyright infringement because it would be work based on and using the person’s work which would be considered derivative work. It may be considered straight infringement and not even considered derivative work because it is not adding anything original. Either way it would still be considered infringement.

Is translations considered to be derivative work and does a person have to get permission to translate the material?

Translations are considered derivative work, but the person would need to gain permission from the original author. Like a movie based on a book would be considered derivative work, and the person would still need to ask permission. The part of the law that the person would need to look at would be section 1062(2).

Is there a way to find out who owns the copyright to a book someone would like to do a derivative work about?

There is not a system in place at this time to find out who owns the copyright to the material. In some cases the information may be found at the copyright office but in most cases it is out of date information. Congress is working on trying to fix this issue and put in place ways for people to find out who owns the copyright to things.

When mixing media considered would this be considered derivative work or does a person have to still get permission?

When a person uses copyrighted material they would still have to gain permission from the owner unless it fits into section 110. Section 110 states; “Limitations on exclusive rights: Exemption of certain performances and displays. Notwithstanding the provisions of section 106, the following are not infringements of copyright: (3) performance of a non-dramatic literary or musical work or of a dramatic-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.” Therefore if a person is not performing the material in a place of worship or religious assembly, the person would need the copyright approval in writing.

When a person wants to rewrite a book, translate a book, do a show, or make a picture based on someone’s work then this would be considered derivative work. This is a type of copyright law and protects the person that originally wrote the material. The person wanting to add their own ideas into the work or wanting to redo the original, the questions may overwhelm them and they may not what is allowed and what isn’t. If this happens, the person may need to seek the advice of an Expert to proceed with their ideas.

Ask an IP Lawyer

Alex Reese
Alex Reese, Lawyer
Category: General
Satisfied Customers: 2760
Experience:  Experienced in intellectual property law
14461494
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Alex Reese
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Satisfied Customers: 2757
Experienced in intellectual property law
Robert McEwen, Esq.
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I assist my clients with IP questions that arise in their daily course of doing business.

Recent Derivative Work Questions

  • i have a few questions about a contract i created for a client

    i have a few questions about a contract i created for a client where i created artwork for them, and used the verbiage "RIGHTS & OWNERSHIP (Intellectual Property) Once the full compensation owed to ‘The Artist’ is paid and approved by him, then ‘The Client’ will retain full rights and ownership.
    C. ‘The Client’ agrees that they will not resell the right(s) of the source file(s) of ‘The Work’ on/ to an application, social media domain, website, business, person(s), entity, or organization for financial gain or trade without notifying and acknowledging the artistic credit of ‘The Artist.’ ‘The Client’ grants ‘The Artist’ permission to redistribute and/or reproduce ‘The Work,’ as outlined in Section IV of this agreement. ‘The Client’ acknowledges that they will not act to hinder or terminate the ‘Permission to Presentation and Portfolio’ as described in Section IV of this agreement."
    I have reproduced and changed the artwork and further developed it, i have noticed the client has not used it and its been over 1 year period. i wanted to know if i would get in trouble for selling the new artwork on my online store. the new artwork is derivative of the one i sold to my client, even though i have reproduced, removed jewelry, changed colors, and i was the original creator of the artwork.
  • copyright permission

    Have I already received permission to print a derivative arrangement of Blowing in the wind for an educational arrangement for piano and cello?
  • Does buying a jewelry design from Alibaba and selling the item

    Does buying a jewelry design from Alibaba and selling the item which turns out to be copyright means Innocent Copyright Infringement (or can be proved willful Copyright Infringement) when:
    -the person had no knowledge that the design was copyright.
    -Many other companies are selling on ebay, and many daily deal sites.
    If non-willful Copyright Infringement, does that relieve the defendant in the lawsuit of the Statuary damages.
    I appreciate any input on this.
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