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Photography, Copyright, and "Derivative Works"
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- Category: Photography
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- Written by Michael Kahn
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Photography, Copyright, and "Derivative Works"
Posted on November 13, 2009 by
Mark Twain channeled the frustration of many artists when he wrote, “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” One such frustration is the realm of derivative works. Artists understand that all art is ultimately derivative. For example, Ernest Hemingway wrote, “All modern American literature comes from one book by Mark Twain called Huckleberry Finn.”
But copyright law takes a narrower view, defining “derivative work” as “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.” 17 U.S.C. § 101.
Why is this definition important? Because one of the six exclusive rights given to a copyright owner is the right “to prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106. Thus the movie version and the videogame version of the novel Jurassic Park are “derivative works” that cannot be made without the permission of the owner of the copyright in the underlying work. Most of us understand that part—but not much else.