DERIVATIVE WORK
ALSO CALLED: ADAPTATION
DEFINITION
A derivative work is a new work based on or adapted from a pre-existing copyrighted work, such as a translation, film adaptation, remix, or sequel, that incorporates enough of the original to require the original rights holder's permission. The right to create derivative works is one of the exclusive rights reserved to a copyright owner.
WHAT IT MEANS IN PRACTICE
Making a derivative work without permission is infringement of the original, even if the derivative itself adds substantial new creative content. Originality in the new material does not excuse the unauthorised use of the underlying protected work.
A derivative work can itself be independently copyrighted, but only in the new material added, not in the underlying original. A licensed film adaptation of a novel gets its own copyright for the screenplay, cinematography, and direction, while the novel's own copyright is untouched and separately owned.
The concept exists in both US and EU law under similar exclusive rights, usually described as adaptation rights in Europe, but the practical edges differ: what counts as sufficiently transformative to escape being a derivative work, versus what counts as fair use or fair dealing instead, is answered differently and unpredictably in each system.
AI-generated outputs have put pressure on this category recently, since a model trained on copyrighted works can produce output that resembles a derivative work of specific inputs, a question courts in both the US and EU are actively working through.
AN EXAMPLE
A studio buys the film rights to a novel and produces a movie that changes the ending and adds new characters. The film is a derivative work of the novel, requiring the novelist's permission through the rights sale, and the film's own new creative elements are separately copyrighted by the studio.
WATCH OUT
Adding enough original material to a copied work does not automatically make it a new, unencumbered work; it can still be an infringing derivative work if the underlying source was not licensed.
LAST REVIEWED