Derivative Work

Synonyms:	adaptation, remix
See also:	Copyright, Fair Use, Transformative Work, Creative Commons, Orphan Works, Public Domain
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A derivative work is a new creative work "that includes major copyright-protected elements of an original, previously created first work (the underlying work)." A derivative work that is not a fair use (at least, under U.S. law) may be considered copyright infringement if it doesn't have a license from the copyright owner of the original work. If a derivative work has not infringed on another's copyright, the original portions of the new work may be independently copyrightable.

Typical examples of licensed derivative works include translations, audiobooks, film adaptations, and tie-in novels.

Many people describe fanfiction as derivative, either legally or aesthetically. However, a fan work that only incorporates the ideas from a canon work, without using any copyrightable expression, is not a derivative work.

Copyright Status

An example of a derivative work (right) based on a copyrighted character design (Hatsune Miku, left). The fan artist owns the copyright in this particular piece of fan art, not the underlying character design.

The copyright status and ownership of a derivative work are often misunderstood. Generally, the author of a derivative work owns the new material they contributed and the specific way in which they recast, transform, or adapt the work—but not the underlying material they incorporated into the work, which remains the property of the original copyright owner.

This principle is illustrated by the image on the right. The left-hand image is the official artwork of Hatsune Miku, which is owned by Crypton Future Media. The right-hand image is a piece of fan art. The copyright in the derivative work is owned by the fan artist, but this copyright only includes the new expression contributed by the artist and does not imply any right to control the use of the character. Thus, Crypton does not have an automatic right to use the fan art without the permission of the fan artist. At the same time, anyone else who wants to use the derivative work needs permission from both Crypton and the fan artist (in this case, permission has been granted under Creative Commons licenses).

Similarly, when an author creates a new derivative work based on a public domain work—such as the Wicked novels, which are based on the 1900 book The Wonderful Wizard of Oz—that author will have a copyright in the derivative work, but this does not bring the public domain material back under copyright.

The new material contributed by the author of a derivative work will be protected by copyright as long as it meets the threshold of originality to be considered an original work of authorship. For example, merely recoloring a sprite or character design, like the image below, will generally not result in a derivative work—more creative elements must be added for the new work to be copyrightable.

• 
  A recolored Pokémon sprite

An important caveat is that copyright protection for a derivative work "does not extend to any part of the work in which [pre-existing] material has been used unlawfully"—that is, in violation of copyright law. The policy rationale according to Congress is to "[prevent] an infringer from benefiting, through copyright protection, from committing an unlawful act," while still enabling the author of a derivative work to claim copyright in the parts of the work that do not infringe on any pre-existing work. Even if the creator of a derivative work does not obtain explicit permission to use the pre-existing material, their use could still be permitted under fair use (or another relevant exception like freedom of panorama for buildings), and thus the derivative work will still be eligible for copyright.

Even if a derivative work contains infringing material, the new authorship in the derivative work can still be copyrighted to the extent that it is separable from the pre-existing work. For example, if a copyrighted poem is set to a new melody, the melody can be copyrighted because it can be separated from the infringing material. On the other hand, where the new authorship is inseparably intertwined with the pre-existing material, as in an arrangement of an existing song, the new material may be ineligible for copyright protection.

Misconceptions

This design is not a "derivative work" of Pokémon IP just because the creator called it a Fakémon.

It is often believed that any fan work based on a copyrighted work, or even an entire media franchise, belongs not to its creator but to the owner of the original IP. This is an oversimplification. Copyright always vests initially in the author of a work, and this is no less true of derivative works. In the case of a derivative work, the author owns the copyright in the new expression they contribute to it, but not the underlying expression that they use in the derivative work, which still belongs to the original IP holder.

In addition, the original IP holder has a copyright claim in a fan work only to the extent that it uses copyrightable authorship that belongs to them—not if the fan work only incorporates uncopyrightable ideas from the IP or material that is only protected by trademark law. Copyrights and trademarks are separate areas of intellectual property: a name or logo can be trademarked without being eligible for copyright protection, and a work can be copyrighted without also being a trademark. Trademark status has no bearing on whether a work is derivative. For example, someone who creates a fake Pokémon design would own the entire copyright to that design as long as it's not based on the copyrightable expression in an existing design, because there is no copyright in: (a) the word "Pokémon", (b) the general idea of a creature being identified as a Fakémon, or (c) the general style of official Pokémon artwork. However, they could still run into trademark trouble if they tried to pass it off as a real Pokémon.

The fact that derivative works, as well as fan works that aren't legally derivative, can have their own copyrights that aren't controlled by the original copyright holder presents a problem for the owners of media franchises. When fan content proliferates, there's a chance that an author could try to sue the franchise if they believe that an official work infringes their copyright or "steals" their concept, even if the official work was developed independently. This issue came up when it was leaked that Game Freak had scrapped a proposed design for a Flying-type Eeveelution because it was thought to be too similar to a fan-made design.

Hence, many media companies have policies forbidding them from accepting or even looking at unsolicited ideas or materials submitted from outside. A number of companies also allow fan content on the condition that the fan creator waive any right to sue them for using the content or making any content that is substantially similar, including Wizards of the Coast and The Pokémon Company. These policies exist to avoid any misunderstandings, not because the company wants to plagiarize fan artists.