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Derivative

Under copyright law, the copyrght holder has rights to all derivatives of the registered copyright. But what is a derivative? It's easy to allege something is a derivative when it isn't. However, there are federal and professional opinions that define a derivative. For a work to be considered a derivative work the work must first contain originality and second, be made lawfully as described under 17 U.S.C. § 103(a). The term "lawfully" refers to permission granted by the true copyright owner. Therefore, one who is found to have derived a work from a copyrighted work would be liable for infringement if the derivation was made without the owner's permission. The standard which courts have used in determining the amount of originality needed for a work to be considered a derivative work has been that the derivative work must make a variation on an underlying work that is considered more than "merely trivial." If the level of originality is considered more than "merely trivial" and the person seeking a copyright has lawfully received permission to create the derivative work, the author of the adaptation will be entitled to his or her own derivative copyright which will be separate from the copyright contained in the underlining work. The level of originality required does vary among the United States Courts of Appeals, leading to uncertainty as to how the law will apply to the new medium of the Web. Section 106(2) of the Copyright Act gives a copyright owner the exclusive right to produce derivative works. In Lee v. A.R.T. Co., the creator of certain copyrighted notecards and lithographs alleged that the defendant had infringed her exclusive right to authorize derivative works by mounting her notecards and lithographs on ceramic tiles. In support of her position, she relied upon two Ninth Circuit decisions that found that mounting copyrighted art on ceramic tiles "recast, transformed, or adapted" the work under Section 101's definition of derivative works. In an opinion written by Judge Easterbrook, the Seventh Circuit rejected the Ninth Circuit's reasoning and concluded that the mounting was not a derivative work under Section 106(2). Focusing again on the parade of horrors that would follow a contrary ruling, Judge Easterbrook analogized the mounting of artistic work onto tiles to the framing of a picture that does not recast, transform, or adapt the picture. Judge Easterbrook noted that the Ninth Circuit itself recognizes that a museum does not violate Section 106(2) every time it reframes a painting, and concluded that A.R.T.'s use of epoxy resin to mount the art in lieu of a frame was "a distinction without a difference." 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 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. Companies will readily claim that something is a derivative, often citing the flawed Ninth Circuit Mirage case, and willfully ignoring the many other circuits that disagreed. Remember, the allegations are designed to intimidate you into submission, sort of a legal "Shock And Awe" tactic, so they will not have to engage in a court battle. You will find that the other side will readily lie to you in order to get you to agree to their terms.