The Copyright Act defines a derivative work as “a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.” The statute also states that “a work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’”
Creating a derivative work requires “a process of recasting, transforming, or adapting ‘one or more preexisting works.’” Thus, 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 the preexisting work(s).
The new authorship that the author contributed to the derivative work may be registered, provided that it contains a sufficient amount of original authorship. Typically, a derivative work is a new version of a preexisting work or a work that is based on or derived from a preexisting work. A new edition of a preexisting work may also qualify as a derivative work, provided that the revisions or other modifications, taken as a whole, constitute a new work of authorship.
The copyright for a derivative work only covers the new material that the author contributed to that work. It does not cover any of the preexisting material that appears in the derivative work. Likewise, a registration for a derivative work does not cover any previously published material, previously registered material, public domain material, or third party material that appears in the work. In other words, the copyright in a derivative work is “independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”
Derivative works often contain previously published material, previously registered material, public domain material, or material owned by a third party because by definition they are based upon one or more preexisting works. If a derivative work contains an appreciable amount of unclaimable material, the applicant generally should limit the claim to the new material that the author contributed to the work, and the unclaimable material should be excluded from the claim. By contrast, there is generally no need to limit the claim if the derivative work is solely based on or derived from unpublished material, unregistered material, or copyrightable material that is owned by the claimant named in the application.
The author of a derivative work may claim copyright in a work that recasts, transforms, or adapts a preexisting work, provided that the preexisting material has been used in a lawful manner. The copyright in a derivative work “does not extend to any part of the work” that “unlawfully” uses preexisting material. The unlawful use of preexisting material may (draft) also infringe the right of reproduction and/or the right to prepare derivative works based upon that material.