the Holy Grail to write his book, but these
also included editorial material prepared
were not copyrightable. The architecture,
by West that was protected by copyright.
structure, or way in which these facts and
Although the database publisher deleted
ideas were presented could be protected, but
the protected editorial material before
Brown had not appropriated the architecture
permanently storing the public domain
of the 1982 book. Rather, he “put together
cases in its database, it was still found guilty
these generalized facts and ideas in to a
of infringement. The court held that the
well received thriller.” ( Michael Baigent and
temporary copies of the West editorial
Richard Leigh v. The Random House Group
materials infringed West’s copyrights even
Limited, [2006] EWHC 719 (Ch).)
though they were subsequently deleted.
( West Publishing Co. v. On Point Solutions
Inc., 1994 WL 778426 (N.D. Ga. 1994).) l
C H A P T E R
Adaptations and Compilations
6
Derivative Works ..................................................................................................................................... 146
Types of Derivative Works ..........................................................................................................147
When You Need Permission to Create a Derivative Work ........................................149
When You Don’t Need Permission to Create a Derivative Work ..........................150
Derivative Work Doesn’t Affect Existing Copyright Protection ............................151
Registering Derivative Works ....................................................................................................151
Compilations ...............................................................................................................................................152
Fact Compilations (Databases) .................................................................................................152
Collective Works .............................................................................................................................152
Extent of Copyright Protection for Compilations ..........................................................153
Preexisting Material in Collective Works Must Be Used Lawful y .........................158
Copyright in Preexisting Material Unaffected by Inclusion
in Collective Work .......................................................................................................................159
Registering Compilations ........................................................................................................... 160
146 | THE COPYRIGHT HANDBOOK
When ’Omer smote ’is bloomin’ lyre,
EXAMPLE: Sheila writes a screenplay based
He’d ’eard men sing by land an’ sea;
upon a novel. In doing so, she takes the
An’ what he thought ’e might require,
novel’s expression (words) and adds her own
’E went an’ took—the same as me!
expression to it—she organizes the material
—Rudyard Kipling
into cinematic scenes, adds dialogue and
Barrack Room Bal ads
camera directions, and deletes prose
T
descriptions and other material that can’t
he old saying “there’s nothing new
be filmed. The result is a new work of
under the sun” may be the truest of
authorship that can be separately protected
all platitudes. If Kipling was right,
by copyright: a screenplay that is clearly
not even the earliest authors created their
different from the novel, yet clearly based
works out of whole cloth. Since authorship
upon, or derived from it.
began, authors have been borrowing and
Of course, all works are derivative to
adapting what others created before them.
some extent. As Kipling declared, all
This chapter is about works that are created authors “take” from each other. Authorship
by using previously existing material. It covers is more often than not a process of
derivative works—works created by trans-
translation and recombination of previously
forming or adapting preexisting expression
existing ideas, facts, and other elements.
—and compilations—works created by
Rarely, if ever, does an author create a work
selecting and arranging preexisting material that is entirely new. For example, writers of in new ways.
fiction often draw bits and pieces of their
characters and plots from other fictional
Derivative Works
works they have read. The same is true of
writers of factual works. For example, it’s
If you take a molten lump of copper and add likely that any new book on the impact
tin to it you’ll end up with something new:
of the electronic media on society would
bronze. A similar process of transformation
be derived to some extent from Marshall
can be used to create new works of author-
McLuhan’s The Medium Is the Message
ship; an author can take expression that
(Random House, 1967).
already exists, add new expression to it, and
However, a work is derivative for copyright
end up with something new—that is, a new purposes only if its author has taken a
and different work of authorship. Such works substantial amount of a previously existing are cal ed derivative works.
work’s expression. As discussed in detail
CHAPTER 6 | ADAPTATIONS AND COMPILATIONS | 147
in Chapter 5, “What Copyright Protects,”
the verses fit the music better, but the
copyright only protects an author’s expression:
show is nothing more than Eliot’s poems
the words used and the selection and
set to music. Cats is a derivative work of Old
arrangement of material, if original. So,
Possum’s Book of Practical Cats.
a new book on the impact of the media on
society would be derivative of The Medium
Is the Mes age for copyright purposes only if
Types of Derivative Works
its author copied or paraphrased substantial
There are many different types of derivative
portions of the words McLuhan used to
works. Let’s look at those of most interest
express his ideas.
to writers in terms of the type of expression
The ideas and facts themselves are not
the author takes from a previously existing
protectable and are therefore free for anyone work and the expression added to it to
to use. Likewise, this year’s novel about
create a new, derivative work.
boy meets girl is not derivative of last year’s
novel on the same theme unless its author
Editorial revisions and elaborations
copied substantial portions of its expression. Preexisting expression taken. The entire text How much is substantial? Enough so
of any preexisting work.
that the average intended reader of the work
New expression added. Editori
al revisions
would conclude that it had been adapted
or other new material.
from or based upon the previously existing
expression.
EXAMPLE: Dr. Blood writes a new edition of
his ten-year-old textbook on heart surgery.
EXAMPLE 1: Edna writes a poem about
He adds several new chapters on new
her cat. She includes one line from a
surgical techniques and revises the other
poem in T.S. Eliot’s cat poetry collec tion,
chapters in light of recent developments.
Old Possum’s Book of Practical Cats. She
The new edition is a derivative work based
probably has not used enough of Eliot’s
on, but designed to take the place of, the
expression for her poem to be considered
earlier edition.
a derivative work of Old Possum’s Book of
Practical Cats.
Fictionalizations
EXAMPLE 2: Andrew Lloyd Webber and
Trevor Nunn write a musical entitled Cats.
Preexisting expression taken. A substantial
The musical is based entirely on the poems
portion of the protected expression con-
in Old Possum’s Book of Practical Cats. Here
tained in a factual work (biography, history,
and there a word or two is altered to make
and so on).
148 | THE COPYRIGHT HANDBOOK
New expression added. Editing, reorganiza-
EXAMPLE: Kitty makes a sound recording of
tion, new dialogue, descriptions, and other
selected highlights from her unauthorized
new material needed to transform the
biography of Hil ary Clinton. The recording
preexisting nonfiction work into a novel,
is a derivative work based on the written
play, screenplay, or other work of fiction.
biography.
EXAMPLE: Art takes the nonfiction work
The Diary of Anne Frank and transforms it
Translations into a new language
into a stage play. To do so, he deletes prose
Preexisting expression taken. All the expres-
descriptions, adds new dialogue, organizes
sion contained in a preexisting work.
the work into scenes and acts, and adds
New expression added. Translation of
new scenes and incidents that weren’t in the the work’s expression into a new version in diary. But he also retains as much of Anne
another language.
Frank’s expression—her words—as possible.
The play is a derivative work based on the
EXAMPLE: Miguel translates Stephen King’s
nonfiction diary.
latest bestseller into Spanish. To do so, he
takes King’s expression (the words contained
in the novel) and replaces them with
Dramatizations
Spanish words. The resulting translation
Preexisting expression taken. All or a sub-
is a derivative work based on the original
stantial part of the expression in a fictional
English-language novel.
work not meant to be performed in public
—that is, a short story, novel, or poem.
Abridgements and condensations
New expression added. Editing, reorganiza- of fiction or nonfiction works
tion, new dialogue and other new material
needed to transform the work into a work that Preexisting expression taken. A substantial can be performed in public—for instance, a
portion of a work’s protectable expression.
stage play or screenplay.
New expression added. Editing and other
revisions that transform the work into a
Translations into a new medium
new, shorter version.
Preexisting expression taken. All or a sub-
EXAMPLE: Reader’s Digest condensed books
stantial portion of the protected expression
are derivative works based on the unabridged
of a work in one medium—for instance, a
editions of the works that are condensed.
published book.
New expression added. Transfer of the
Annotations
work’s protected expression into a new
Preexisting expression taken. All or a substan-
medium.
tial portion of a work’s protected expression.
CHAPTER 6 | ADAPTATIONS AND COMPILATIONS | 149
New expression added. Notes or other
Such permission usually takes the legal
materials that clarify the meaning of the
form of an exclusive license to prepare a
preexisting text.
particular derivative work—for example, a
screenplay—from the preexisting material.
EXAMPLE: The annotated version of Lewis
(See Chapter 8, “Transferring Copyright
Carrol ’s Alice in Wonderland is a derivative
work prepared from the original version
Ownership.”)
of Alice.
What Happens If You Fail
to Get Permission
When You Need Permission to
Create a Derivative Work
If you create a derivative work without
obtaining permission from the owner of
One of the five exclusive copyright rights
the copyright in the preexisting work, your
that automatically come into existence the
original contributions will ordinarily enter
moment an original work of authorship
the public domain. For example, if you
is written down or otherwise fixed in a
translate a Spanish novel into English without
tangible form is the exclusive right to
permission, you will lose any claim to
prepare and distribute derivative works
copyright protection in the original elements
based on the work’s protected expression.
you added in your translation—that is, your
This means you cannot create and publish
choice of English language words to convey
a derivative work by using someone else’s
the meaning of the Spanish original. Anyone
protected expression without obtaining
would be free to copy your translation
their permission. If you do, you violate that
without obtaining your permission, but they
person’s copyright and would be subject to a
would have to obtain permission from the
copyright infringement suit.
owner of the original Spanish work (but the
owner of the Spanish novel would need no
EXAMPLE: Rhonda writes a critical y
permission at all to copy your translation).
acclaimed novel. Rex writes a screenplay
based on Rhonda’s novel without obtaining
her permission to do so. Rex sel s the
screenplay to a Hol ywood studio. Rhonda
If you intend to create a derivative
has a valid claim against Rex for infringing
work from preexisting expression that is
on her right to create derivative works from
still under copyright, be sure to get the
her novel.
copyright owner’s permission to use the
work before you go to the time and trouble
of adapting it into a new work.
150 | THE COPYRIGHT HANDBOOK
When You Don’t Need Permission
/> the public domain. Public domain material
to Create a Derivative Work
belongs to the world, and anyone is free
to use it in any way he or she wishes. (See
In some instances, it is not necessary
Chapter 5, “What Copyright Protects ,” for
to seek anyone’s permission to create a
a detailed discussion of the public domain.)
derivative work, and the only legal issue
A work may be in the public domain because
the author must deal with is registering the it was never copyrighted or the copyright
derivative work with the Copyright Office.
expired. The expression in such works may be
Registration of derivative works is discussed used in any way without permission.
in Chapter 3, “Copyright Registration .”
Author owns right to prepare derivative
Fair Use of Protected Expression
works from preexisting expression
An author doesn’t have to get anyone’s
Even if a derivative work author uses some-
one else’s protected expression, permission
permission to create a derivative work if
may not be required if the use constitutes
the author owns the entire copyright in
a fair use. Pursuant to the fair use privilege,
the preexisting protected expression or the
an author may take a limited amount of
right to prepare derivative works based
the protected expression in preexisting
upon it. Authors start out owning all the
works without the copyright owner’s
copyright rights in their works, including
permission. Whether or not a use is fair
all derivative rights, but they often transfer
is determined according to the facts and
them to publishers, film producers, and
circumstances of the particular case. Courts
others. An author cannot create a derivative
consider the purpose of the use (whether
work from his or her own work if he or she
for educational or commercial purposes,
has transferred his or her derivative rights
for example), the nature of the preexisting
to others. (See Chapter 8, “Transferring
expression, the amount of preexisting
Copyright Ownership.”)
expression taken, and whether the use
reduces the value of the copyright owner’s
EXAMPLE: Livia writes a novel and sel s the
rights in the preexisting expression. A
exclusive right to prepare a screenplay based
parody of a wel -known work might be one
The Copyright Handbook Page 27