Derivative work Guide, Meaning , Facts, Information and Description
Creativity always builds upon the past. When that past has been recently created (for sufficiently loose definitions of "recently"), the creator of the past can exercise a degree of control over future creativity. This control is called "copyright" while the future creativity built upon non-trivial copyrighted material is called a "derivative work."A derivative work may be a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or many other forms of transformation.
An excellent example of a derivative work that was not controlled by previous copyright was 1996's Romeo + Juliet. The copyright had long since expired on Shakespeare's original play, so his descendants could not exercise control over 20th Century Fox's adaptation of the text into the derivative work of a motion picture. Had copyright still existed upon the original play, the holder could have exercised considerable control over any potential derivative works, including (but not limited to) banning their creation or distribution.
However, copyright law is quite clear that the right to derive from a copyrighted work can only be granted by the original author of the work. (We will assume that the original copyright is still held by the original author.) Even when a derivative is authorized, the deriver only gains copyright on their revisions, NOT on the re-used elements of the underlying original work. (The deriver's copyright is also dependent on the original author giving authorization to derive; unauthorized derivatives are completely copyrighted by the original, and not deriving, author.) Regardless of authorization, the copyright to the original work and its reused elements in the derivative are always retained by the original author.
Requiring permission to derive, coupled with split ownership of the derivation, has historically limited innovation. Under traditional copyright, the only way to build upon the copyrighted expression of an idea is to use it "de minimis," or in such a small amount that no one (including the original author) can legally ascertain where the creativity originated.
What generally constitutes the building blocks of "non-trivial" copyrighted material, and thus a derivative work, is a question that keeps many copyright lawyers in steady employment.
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