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Derivative Works

One of the ugliest, slimiest and worst-smelling areas of music and video copyright law is the 'derivative work'. Put simply (for now!) a 'derivative work' is something which uses another copyrighted work within it. Examples of derivative works include:

• The lyrics to Just Lose it performed to a reggae melody
• A motion picture of the book Famous Michigan Surfers of the 1850's
• Framing external website content within your own to disguise it's true location and owner
• A music video featuring Mickey Mouse
• A play that includes the melody to Comfortably Numb during a dance sequence

Things that may be derivative works but it depends on where you live and what the courts decide on the day include:

• A hoodie printed with the face of Amy 'Schnowy' Lee - not derivative, but will be illegal under the laws protecting right to publicity which exist in some US states, and may infringe copyright of the photographer.
• An abstract computer wallpaper using the logo and a few photographs from a band website - you would need to show the record label granted permission for those uses instead of you just saving them to disk without asking.
• A bracelet using a band logo - not a derivative work but certainly illegal if the band have trademarked their logo to protect merchandise.

Things that are not derivative works include:

• A rap using a Shakespeare sonnet (Shakespeare's plays are in the public domain as he died more than 70 years ago)
• A photograph of your sister with a famous person, who agreed to stand there like a schmuck while you took it.
• A simple web link
• Mugs, t-shirts or tiles printed with a photograph that you have permission to reproduce from both the photographer and any people within it.

OK, so maybe now we can define a little better what this 'derivative work' thing really is. Under US Law (and similar ideas exist in other countries but you MUST check with your lawyers!) it means:

"any . . . work [that] may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represents an original work of authorship, is a 'derivative work.'" (US Code Title 17, S101.1994)

The problem with this definition is it doesn't give a percentage. If I write a song and use ALL of the lyrics to Hard Days Night, it sure is a derivative work. But what if I only use the chorus? How about a blond underweight shadowy rapper using part of a 1980's hit record in his new song? Well in that case it depends on where you live! Different countries have different 'percentage limits' on what makes something derivative, and although a few bars sampled into a song is very unlikely to count, you may still find people testing you in court!

Derivative works require the original thing to be copyrighted - so quoting Shakespeare is OK as he's long-dead, using a video shot of New York is fine as nobody owns the city, and starting your goth metal extravaganza with a burst of Handel is almost ok.

Almost?

yeah, well.. Handel isn't about to care, but what about the orchestra who recorded it?

The concept of 'derivative work' applies only to copyrights, and for trademarks there are different rules, which we'll cover later. If you create a derivative work and don't get permission from the original copyright holders, then they can sue you. Plain and simple. They can demand that you stop selling the work, take it off the website, pay damages and legal fees, and generally ruin your day. The fun thing about copyright law is that it's not just national.. you can infringe people in other countries and they can infringe you.. read on for how things work once you get all international!