Draft third edition of USA copyright office compendium – the copyrightability of a derivative work

A derivative work may be registered with the U.S. Copyright Office, provided that it constitutes copyrightable subject matter. Derivative works are a subset of the subject matter categories, rather than a separate and distinct category of work. In other words, the new material that the author contributed to the derivative work must fall “within one or more of the categories listed in section 102 of the Copyright Act.”

In addition, the preexisting work that has been recast, transformed, or adapted, “must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted.” For example, a ballet based on an epic poem would be considered a derivative work, because a poem is a type of literary work. By contrast, a photograph of a lake or a sculpture of a mountain would not be considered a derivative work, because lakes and mountains do not constitute copyrightable subject matter.

The fact that the author incorporated uncopyrightable elements of a preexisting work into his or her work does not necessarily mean that the author’s expression qualifies as a derivative work. The author of the derivative work must recast, transform, or adapt some of the copyrightable portions of a preexisting work. Derivative works contain two distinct forms of authorship:

  • The authorship in the preexisting work(s) that has been recast, transformed, or adapted within the derivative work; and
  • The new authorship involved in recasting, transforming, or adapting those preexisting work(s).

The amount of creativity required for a derivative work is the same as that required for a copyright in any other work. Thus, “the key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the preexisting work in some meaningful way.” Miniscule variations do not satisfy this requirement, such as merely changing the size of the preexisting work. Merely recasting a work from one medium to another alone does not support a claim in derivative authorship.

A registration for a derivative work only covers the new authorship that the author contributed to that work. It does not cover the authorship in the preexisting work(s) that has been recast, transformed, or adapted by the author of the derivative work. Likewise, a registration for a derivative work does not cover any previously published material, previously registered material, or public domain material that appears in the derivative work.