Lesson 5: Derivative Copyright

Lesson 5: Derivative Copyright

Where to Find Information on Derivative Works
by Cathy Poage and Terri Hopkin ©2005

There is another form of copyright that we need to cover and it is called Derivative Copyright, meaning quite literally that it has been “derived” from another copyrighted image that already exists. To qualify for this classification the new work must be significantly different from the original and / or it must contain a considerable amount of new material to be regarded as a “new work”. Minor changes or alterations will not qualify for the “new work” status and the derivative copyright will not be granted.

In almost all cases, only the original copyright holder can prepare or permit a new version of their work to be performed, and the derivative copyright only applies to the alterations that have been made. A good example of this would be when an author allows one of his books to be turned into a movie. The movie script writer would then hold the new derivative copyright on the screenplay while the original author would still hold the copyright. Have you ever read a book then seen the movie? The two are normally different, the “basis” of the story will be constant but budget restraints and practicalities often mean the screen adaptation will change the settings, change story lines, change the order and the way events happen – all these adaptations would become the derivative copyright.

In the creating community when we work in PSP or other graphic programs it is easy to see why some people often wrongly believe that we are creating legal, derivative copyrights. After all when you break it down and look at what we do – we might separate off the main image by tubing, we often work in layers floating new backgrounds, new effects, we add extra layers and often the end result is greatly different from the original. However, unless you have the original artist’s permission to firstly use his art in this way, and more importantly – his written permission that allows you to claim the derivative copyright, then you have no actual claim to the work you create.

There is another form of derivative copyright and it relates to images in the public domain.

Derivative Copyright and Public Domain

Let’s look at how Derivative Copyright applies to public domain images. We have already learned in the Public Domain lessons, if you have access to an original image that was published before 1923, and you are either the owner of that item, or you have permission from the owner - Copyright Laws allow you to use this image without charge or permission. This means you are legally able to photograph, scan, or use any other means at your disposal to convert the image into a digital image that can be used online.

Remember the basics of Copyright Law – the person who presses the shutter automatically owns the copyright and the owner of the original copyright must give permission for a derivative to be made? As you have snapped the photograph you have claim to the copyright, furthermore because the law states that the original image is now in the public domain, you do not need to request permission to create the derivative.

We know that Derivative Copyright only applies when you make significant changes to the original item, so when you photographed or scanned the original image you transferred the medium. You significantly altered it into a new digital image, it is now in a completely different format and, as such, you now own the Derivative Copyright.

To conclude, the copy you have made of the original image is now your personal Derivative Copyright. It is yours to work with as you choose. If you upload it to a website, the Derivative Copyright belongs to you. If someone else wants to use your copy, legally they must request your permission to do so, and you are entitled to say no, or dictate that your credits must remain intact.

Online Images Pre 1923

If you understand the above, you should now understand that all the pre 1923 images you see online today, are copies. As such, the Derivative Copyright’s belong to other people.

Ludicrous as though it may seem, if today you type into Google’s search engine, under the images button – Mona Lisa, it will return approximately 51,000 hits. As the Mona Lisa is now in the public domain, and as the Louvre allows images of her to be taken, it is fair to assume that each of these 51,000 images is a Derivative Copyright owned by the person who posted the image onto the internet. As with all other copyrights, you would need permission from the derivative holder to use the artwork.

Likewise some eBay dealers who specialize in selling old postcards, will also sell you cd-roms of the images they have in their collections. This is totally legal and in the past year Cathy has purchased about 20 cd's

Public Domain does not mean you can trace the images and state that it is your original work; it simply means you can use the image without payment or permission but you should always credit the original artist too.

A great example of a website hosting old masters is Art Renewal. At first glance most people believe that Art Renewal is a fantastic source of public domain images. But if you look a bit further, Art Renewal categorizes themselves as a Reference Library only. Every image on their website is a derivative copy, owned by a third party who is granting Art Renewal permission to display it in their reference library. Art Renewal owns the copyright to the “collection” as they have assembled it, but not to the actual images. So, this is NOT a public domain site, permission must be sought to use any of their images.

This means if you photographed the Mona Lisa, you would own the derivative copyright to your personal copy and you could offer it to Art Renewal for inclusion. If Art Renewal accepted your image and uploaded it to their website you would still own the derivative copyright and anyone wanting to use your copy would have to ask your permission. Art Renewal would own the copyright to the layout of the webpage, and to the way your image was catalogued in their collections.

Most of the information for this tutorial has come from the following two sources, those interested can read more about derivative copyrights in this government circular here - http://www.copyright.gov/circs/circ14.html or in Section 106 and Section 106a of copyright law here - http://www.copyright.gov/title17/92chap1.html