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17.13 Derivative Work (17 U.S.C. §§ 101, 106(2))

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17.13 COPYRIGHT INTERESTS—DERIVATIVE WORK (17 U.S.C. §§ 101, 106(2))

A copyright owner is entitled to exclude others from creating derivative works based upon the owner’s copyrighted work. The term derivative work refers to a work based on 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 the pre-existing work is recast, transformed, or adapted]. Accordingly, the owner of a copyrighted work is entitled to exclude others from recasting, transforming or adapting the copyrighted work without the owner’s permission.

If the copyright owner exercises the right to [create] [allow others to create] a derivative work based upon the copyrighted work, this derivative work may also be copyrighted. Only what was newly created, such as the editorial revisions, annotations, elaborations, or other modifications to the pre-existing work, is considered to be the derivative work.

Copyright protection of a derivative work covers only the contribution made by the author of the derivative work. If the derivative work incorporates [pre-existing work by others] [work in the public domain], the derivative author’s protection is [limited to elements added by the derivative author to the [pre-existing work of others] [public domain work]] [, or] [limited to the manner in which the derivative author combined the [pre-existing elements by other persons] [pre-existing elements in the public domain work] into the derivative work].

The owner of a derivative work may enforce the right to exclude others in an action for copyright infringement.

Comment

In addition to the criteria set out in this instruction, in order for a sound recording to qualify as a derivative work, the actual sounds fixed in the recording must be "rearranged, remixed, or otherwise altered in sequence or quality." 17 U.S.C. § 114(b). If a sound recording is at issue, the instruction should be adjusted to account for the § 114(b) factors.

"The copyright in a . . . derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work . . . [and] . . . is independent of . . . any copyright protection in the preexisting material." 17 U.S.C. § 103(b). See also Stewart v. Abend, 495 U.S. 207, 223 (1990) (aspects of a derivative work added by the derivative author are that author’s property and elements drawn from a pre-existing work remain the property of the owner of the pre-existing work); Batjac Productions Inc., v. Goodtimes Home Video, 160 F.3d 1223, 1234-35 (9th Cir.1998) (under 17 U.S.C. § 103(b), as under 1909 Act, a copyrighted underlying work remains copyrighted even if the derivative work based on it enters the public domain.).

A derivative work is saved from being an infringing work "only because the borrowed or copied material [in the derivative work] was taken with the consent of the copyright owner of the prior work, or because the prior work has entered the public domain." Micro Star v. Formgen, 154 F.3d 1107, 1112 (9th Cir.1998).

"In order to be copyrightable, (1) ‘the original aspects of a derivative work must be more than trivial’ and (2) ‘the original aspects of a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of copyright protection in that preexisting material.’" U.S. Auto Parts Network v. Parts Geek LLC, 692 F.3d 1009, 1016 (9th Cir. 2012) (quoting Durham Indus. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir.1980)).

Approved 12/2012