Talk:Derivative work


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Copyright violation?
Does the picture used as an example violate copyright law?

VMG - 24OCT2007


 * In looking at the page for the image, the author indicates each of the sources for the composite image as being from the wikimedia commons. Donald (talk) 10:10, 16 January 2008 (UTC)

Minor change
Should this page read "renting the prints was a copyright infringement". The word "renting" seems out of place. Was this perhaps supposed to be "releasing the prints was a copyright infringement"?

MP 02:00, 8 January 2007 (UTC)

Article needs work
Half the links are bad, article overall does not read very well. Perhaps I'll get around to it, but maybe someone else who's knowledgeable wants to jump in and fix it? I'm going to put a cleanup broilerplate on the article.
 * What generally constitutes the building blocks of "non-trivial" copyrighted material, and thus a derivative work, is a question that keeps many copyright lawyers in steady employment.

That line is not really appropriate. --Josh3736 05:56, 2 Feb 2005 (UTC)

Cleanup
I added the cleanup tag mostly because the first tag was removed with no explanation by an anon, but also because the article needs cleanup. Copyright lawyers, please step in. Deltabeignet 23:19, 13 January 2006 (UTC)

article clears some minor things up but also confuses me more
so ... is sampling of copyrighted songs legal or not? --Nerd42 19:12, 23 March 2006 (UTC)

Depends on the sampling; depends also on what you're using it for. Sampling for commercial use probably falls under the rights expressed by the property owner; that could be the artists or the record company. Probably want to look up Trademark Dilution as a side reference. 206.21.11.205 14:57, 6 April 2006 (UTC)

fan-fiction?...

@Nerd42: Sampling - The example referenced in the article:

>the Supreme Court found that although a parody of the song "Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense

>The mockery of “Oh, Pretty Woman,” discussed in Campbell v. Acuff-Rose Music, Inc., is a similar example of transforming a >work by showing it in a harsh new light or criticizing its underlying assumptions. Because of the parody's >transformativeness, the Supreme Court found the derivative work a fair use.

2 Live Crew, if I'm correct to assume from the original article, in the parody "Oh, Pretty Woman" didn't "sample" the original, they "transforming a work by showing it in a harsh new light or criticizing its underlying assumptions", and the song was not "sampled" but performed by 2 Live Crew after it was transformed.

http://en.wikipedia.org/wiki/Sampling_%28music%29 >2 Live Crew, a hip-hop group familiar with controversy, was often in the spotlight for their 'obscene' and sexually explicit lyrics. They sparked many debates about censorship in the music industry. However, it was their 1989 album As Clean as They Wanna Be (a re-tooling of As Nasty As They Wanna Be) that began the prolonged legal debate over sampling. The album contained a track entitled "Pretty Woman," based on the well-known Roy Orbison song Oh, Pretty Woman. 2 Live Crew's version sampled the guitar, bass, and drums from the original, without permission. While the opening lines are the same, the two songs split ways immediately following.[11]

A typical "sample" of copyright songs would not be able to generally use that defense, and therefore be an unauthorized derivative if I interpret the above Supreme Court ruling. In regards to sampling, permission and royalties need to be paid to the performer, and the holder of the copyright (lyrics and song-writing)

For more information on Sampling:

http://en.wikipedia.org/wiki/Sampling_%28music%29 >Legal issues >Sampling has been an area of contention from a legal perspective. Early sampling artists simply used portions of other artists' recordings, without permission; once rap and other music incorporating samples began to make significant money, the original artists began to take legal action, claiming copyright infringement. Some sampling artists fought back, claiming their samples were fair use (a legal doctrine in the USA that is not universal). International sampling is governed by agreements such as the Berne Convention for the Protection of Literary and Artistic Works and the WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

And if your too lazy: http://en.wikipedia.org/wiki/Sampling_%28music%29 Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.[13] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[14] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.

Related Terms and alternative definitions
I think we need links to terms like aggregated works and fair use

Is this definition compatible with the this article? -

DERIVATIVE WORK - A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization,motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. 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'. 17 U.S.C.

Kctucker 09:55, 16 April 2007 (UTC)

Fair use is an exclusively American legal concept; how about also linking the related fair dealing, the equivalent in many common-law countries? 142.161.178.190 (talk) 04:17, 28 April 2008 (UTC)

Counterexamples
Expanding on Nerd42's and Kctucker's points, I would like to see more discussion of what does not qualify as a derivative work. I think the article needs clarification of the boundaries, which are now neglected, except some weak counterexamples with software (drivers, libraries). This article has virtually nothing to refute, for example, the claim that any book in English is a derivative work of Merriam Webster's Dictionary. Such a notion is obviously absurd, but I'd like some guidance on supporting less obvious claims. Isn't there a legal distinction between copyrighting content versus presentation? Facts versus phrasings? "You can't copyright facts" rings in my head. What's the bigger story?

I have made works about HTML at http://www.visibone.com/html/. I used and refered to HTML specifications at http://www.w3.org/html/. I typed and positioned all content from scratch, no phrases or diagrams are clones of those in the specs, yet the influence on content is clear. How is my work not derived from those specifications? I realize the edges must be very fuzzy, but certainly there is precedent for at least coarsely locating it.

Defining (or linking to) "fair use" helps, but I don't think it's complete to say "fair use" covers everything allowed and "derivative work" everything not.

(Incidentally I'm not concerned in my own case about my old HTML reference, more about an upcoming PHP reference.)

Bob Stein - VisiBone 13:24, 18 May 2007 (UTC)

Substantial Edits on December 22, 2007
I am attempting to revamp this article for clarity and usefulness. I hope I have addressed some of the previously stated concerns about this article. I've made some quite substantial edits that I hope they improve the article.

the changes made
The article was first of all quite sloppy, with numerous statements about derivative works that were not in context and did not create a cohesive picture of what a derivative work is. Many of these statements were also either not cited or were not cited in an appropriate format. I apologize to anyone whose contribution was deleted, but much of what previously existed would take too long to format into the cohesive description of derivative works I am trying to build. I've cleaned up the section on U.S. law and tried to categorize it into conceptual chunks that make sense. I've added subheadings to try and better delineate these categories.

There were also concerns that the article did not deal appropriately with the fair use doctrine, which is actually quite important in understanding the limits of the derivative work right. I added a section on fair use and linked to the fair use article.

I also changed the word "artistic" to "expressive" in the opening line of the article. I made this change to indicate that derivative works can include non-artistic works such things as computer programs or telephone directories, while still articulating the fact that copyright protection only extends to expressive works.

Finally, I added more statutory background. Knowing the statutory background is helpful in understanding copyright law, as it is a field that relies heavily on a statutory basis. Hopefully this change provides relevant law while maintaining a level of readability that is accessible to non-lawyers.

what still needs be done
The changes I made do not address the central concern that this article is U.S.-centric. Unfortunately, my understanding of international IP is extremely limited. In addition, the need for more and better examples, including counter-examples, still exists.

Donald (talk) 04:31, 23 December 2007 (UTC)

Derivative works of software
This section has a couple of problems. First, the statement that all cases dealing with derivative works of software are fact specific and don't deal with the issue broadly needs to be backed up with a citation. I'm not sure that it is even an accurate assessment of the state of the law.

Second, wikipedia really shouldn't give out legal advice, even in the form 'rules of thumb.' Aside from any sticky legal issues arising from someone following such advice, it really isn't encyclopedic material. —Preceding unsigned comment added by Donaldrobertsoniii (talk • contribs) 10:21, 16 January 2008 (UTC)

Supplying authority
I am working on supplying citations for statements that WLU questioned. It will take a while to annotate this. But I intend to plug away at it. PraeceptorIP (talk) 03:38, 14 November 2008 (UTC)

Mention on DailyKos
This article was mentioned and quoted on DailyKos.com by Markos Moulitsas himself. See or. Bearian (talk) 18:35, 5 February 2009 (UTC)

Photographs
It would be great if this article specifically addressed the issue of when a photo constitutes a derivative or transformative work. I find it unenlightening with respect to some questions about the media, e.g.:


 * 1) If a photographer takes straightforward picture of a painting offered for sale on a public street, the painter has copyright rights?
 * 2) If someone dresses up in costume, and a photographer takes their picture (a candid or a posed shot) on a public street, the subject has copyright rights?

(PS: US Copyright Office Circular 14: Derivative Works is a broken link.) --Elvey (talk) 20:27, 5 May 2009 (UTC)
 * I found some good guidance on question #2, particularly with respect to Wikimedia: http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Images_of_costumes_tagged_as_copyvios_by_AnimeFan --Elvey (talk) 19:25, 7 May 2009 (UTC)

West Side Story/Romeo and Juliet
It can be disputed whether the former is a derivate of the latter; further, if it, it must be noted that Romeo and Juliet is itself a derivate of previous works (cf. http://en.wikipedia.org/wiki/The_Tragical_History_of_Romeus_and_Juliet or http://en.wikipedia.org/wiki/Pyramus_and_Thisbe_. 94.220.254.157 (talk) 17:28, 28 February 2010 (UTC)

West Side Story is a DW according to the statutory definition. It is based on R&J and takes substantial expressive elements from it. The fact that R&J is itself a DW does not make any difference. PraeceptorIP (talk) 22:47, 4 May 2015 (UTC)

Although many experts say that "West Side Story" is not a derivative work, Nimmer on Copyrights says "West Side Story" IS a derivative work. § 13.03 Robinesque (talk) 11:14, 30 August 2016 (UTC)

The following text is very unclear and seems to be incorrect: "no legal rule prevents a derivative work from being based on a work that is itself a derivative work based on a still earlier work — at least, so long as the last work borrows expressive elements from the second work that are original with the second work rather than taken from the earliest work. The key is whether the copied elements are original and expressive (not merely conventional or mise en scène); if that is so, the second or derivative work is independently subject to copyright protection, and if that is not the second work (if unauthorized) may infringe the first, but it is not independently copyrightable." It could be corrected by inserting the words "The last work infringes on the second work" right before "so long as".

It could be made more clear by changing the words "and if that is not the second work" to "and if that is not so, the second work".

Even if it were corrected and made clearer, it would belong under a different topic (the topic "When does derivative-work copyright apply?").

Could someone who knows what the intended meaning might be, please edit it for clarity, correctness, and correct location? Thanks. Robinesque (talk) 11:42, 30 August 2016 (UTC)

Pop-up ad example may be wrong
It is claimed in the article that pop-up ads create a derivative work of the web page that's partially covered up by the ad. However, the reference seems to state exactly the opposite, "The Court finds this argument unpersuasive ... Plaintiffs do not have any property interest in the content of a user's pixels, much less a copyright interest." Perhaps this example should be removed from the article or amended to explain that one window partially covering another window is not a derivative work? Maghnus (talk) 01:34, 9 August 2010 (UTC)

This has now been amended to reflect The point Maghnus made. PraeceptorIP (talk) 21:54, 4 May 2015 (UTC)

I would add that the legal analysis by these district courts is flawed (e.g., fixation argument is contrary to House Report; owning the pixels is just nonsense) and the plaintiffs had the better view on the definitional issue. However, the defendants should probably prevail after a fair use balance, because of the public benefit of the price comparison. Yet, this is debatable since a balance of incommensurate interests is involved. See the Ninth Circuit's decision in the Perfect 10 case. PraeceptorIP (talk) 22:57, 4 May 2015 (UTC)

Capitalization of "court"
Someone has gone through this article and capitalized many or all uses of the word 'court." That is incorrect style in US legal writing. The matter is discussed in the current (19th) edition of the BLUEBOOK at pp. 85-86. The word is always capitalized in reference to the US Sup Ct or in the full name of a particular court. Otherwise, it is always lower case. All of these changes to "Court" are WRONG and should be reverted to "court." Could we get a bot to do this? Is there a way to get ill-informed persons not to do this?

Authors given the right to impede their integrity?
The second para of the lead-in starts with "Most countries' legal systems seek to protect both original and derivative works. They grant authors the right to impede or otherwise control their integrity and the author's commercial interests."

Could someone who knows what the intended meaning might be, please edit it for clarity? What is allowed to be impeded? Whose integrity is at issue?

Phil Barker 09:04, 14 December 2015 (UTC)

Unauthorised Lawful Derivative Works
At the end of the section "When does derivative-work copyright apply?", the last line reads "The courts have not yet addressed the issue of lawful (i.e., not unlawful) use without authorization, as in the Pretty Woman case."

However, in the case of Keeling v. Hars, No. 13‐694‐cv, Second Circuit Court of Appeals, it was concluded that unauthorised lawful derivative works are eligible for copyright protection:

We hold, for substantially the reasons stated by the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge), that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality, she may claim protection under the Copyright Act, 17 U.S.C. § 103, for her original contributions.

(See http://www.ca2.uscourts.gov/decisions/isysquery/4f313489-6555-485a-a400-bc264009c5e2/2/doc/13-694_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4f313489-6555-485a-a400-bc264009c5e2/2/hilite/)

That section of the article should therefore be updated to reflect this new information.

--Cannaya (talk) 14:15, 1 January 2016 (UTC)

Erroneous edit of Mona Lisa Mustache discussion
Someone who completely misunderstood the point of the cited article on LHOOQ changed "mocking" to "imitated." The point of the cited article is that Duchamps incensed the French bourgeoisie by mocking their idol, NOT by imitating it. It would not have been a parody if it merely imitated the work. Whoever it was who made this edit, please do not make changes where you do not understand the issue. PraeceptorIP (talk) 21:48, 13 January 2016 (UTC)

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Added Globalize banner
I've added the globalize banner: Beyond short definitions in the 1st section, the majority of the article purely cites US case law. (Though ironically I might soon contribute to the problem if I can find the proper sources. To my recollection, section 4 titled "Liability of derivative-work" is an oversimplification of the US case law.) DPenner1 (talk) 02:12, 22 December 2021 (UTC)