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Entertainment Research Group v. Genesis Creative Group

Derivative works can be copyrighted under Section 103(a), but only to the extent of the author's contribution to the work as distinguished from the preexisting material. In Entertainment Research Group v. Genesis Creative Group, the Ninth Circuit appears to have raised the standard for that district for obtaining a copyright for a derivative work created in a different medium than the original work. In this case, the court rejected a test that finds derivative work copyrightable if the form of the derivative work and the form of the underlying work (e.g., three dimensional versus two-dimensional, plastic versus paper, etc.) are sufficiently different. Instead, the court adopted the Second Circuit's Durham test, which holds that to support a copyright, the original aspects of a derivative work: (1) must be more than trivial; and (2) must reflect the degree to which the derivative work relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material.