Frequently Asked Question

Derivative works
Last Updated 5 years ago

A derivative work is something that is "based on or derived from" another work. For example, the first Star Wars novelization is a derivative work of Star Wars Episode IV: A New Hope. Therefore, Del Rey Books required Lucasfilm's permission to publish and distribute the book. The French translation of Harry Potter and the Philosopher's Stone is a derivative of the English novel. Translator Jean-François Ménard required the permission of J. K. Rowling's agent, Christopher Little Literary Agency, to prepare, publish and distribute it.

You may not distribute a derivative work of a work under copyright without the original author's permission unless your use of their content meets fair use or fair dealing. (Generally, a summary (or analysis) of something is not a derivative work, unless it reproduces the original in great detail, at which point it becomes an abridgment and not a summary.)

Taking a work in the public domain and modifying it in a significant way creates a new copyright on the resulting work. For instance, the Homecoming Saga by Orson Scott Card is a re-telling of the Book of Mormon. Therefore, the books in the Homecoming series can be copyrighted. No Fear Shakespeare is a series adapting the works of Shakespeare into modern language. Even though Shakespeare's works are public domain, the No Fear Shakespeare series is protected by copyright. This is true as well of the translations in the Penguin Classics series. Although faithful translations of public domain works, they each are protected by copyright.

However, the new work must be different from the original in order for a new copyright to apply, as the US Supreme Court ruled in Bridgeman Art Library v. Corel Corporation.

The Bridgeman Art Library had made photographic reproductions of famous works of art from museums around the world (works already in the public domain.) The Corel Corporation used those reproductions for an educational CD-ROM without paying Bridgeman. Bridgeman claimed copyright infringement. The Court ruled that reproductions of images in the public domain are not protected by copyright if the reproductions are slavish or lacking in originality. In their opinion, the Court noted: "There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection.... But 'slavish copying', although doubtless requiring technical skill and effort, does not qualify."

This ruling only applies to two-dimensional works. For pictures of statues (which is, effectively, a translation of a three dimensional work into a two-dimensional copy) the picture taker has creative input into which angle to take the photographs from. Therefore, a new copyright is created when the picture is taken. Therefore, pictures of public domain 3D works are not free unless it was created by the uploader. In addition, in some countries such as the United Kingdom, simple diligence is enough for a work to be copyrightable (including reproductions of public domain works). The position of the Wikimedia Foundation on this, however, is that any reproduction of a two-dimensional work in the public domain is not copyrightable, for otherwise the very purpose of the public domain would be defeated as to such works.

Pictures of copyrighted buildings are not considered derivative works, unless the country it is photographed in does not have freedom of panorama provisions (such as France or Italy). In United States copyright law though, "The copyright in an architectural work that has been constructed does not prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work – but only if the building in which the work is embodied is located in or ordinarily visible from a public place."[9] As such, freely-licensed photos of copyrighted buildings (but not photos of copyrighted artwork attached to buildings) generally can be hosted on the US-based English Wikipedia regardless of where the photo was taken.

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