XIII. What is a derivative work?

To qualify as a derivative work, authors must satisfy two requirements:
1. the author’s new work must transform, recast or adapt another’s original work
2. the author must satisfy the substantially similar test. To satisfy that test, the author must have created at least some substantial variation from the original work that is not merely trivial.
Photographs that lack “any independently created expression”1 in terms of lighting, film choice, positioning of the subject, etc. are considered slavish copies and are not protectable as derivative works. Both (a) translating a photo into a different medium like a sculpture2 and (b) re-arranging binary digits in computer code3 have been held to have insufficient independently creative expression to create a derivative work.
Slavish copies lack “any independently created expression.”4 In Bridgeman Art Library, the court found that an author who creates transparencies of paintings “where the goal was to reproduce those works exactly and thus to minimize or eliminate any individual expression” were slavish copies, and as a result were not protectable as derivative works.5
If you have questions about whether your work would be considered a derivative work and what that means to how copyright law protects your work, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
1. Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513, 520 (7th Cir. Ill. 2009).
2. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir. N.Y. 1976)
3. 1-3 Nimmer on Copyright § 3.03
4. Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513, 520 (7th Cir. Ill. 2009).
5. Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513, 519 (7th Cir. Ill. 2009)


Frequently asked questions about derivative works in copyright law

Can I use someone else’s characters in my new original story?

Can I write a screenplay based on a book that I didn’t write?

Can I write the screenplay for the sequel to a movie if I didn’t write the original movie?

The contents of this guide were created through support from the CCPF - the California Consumer Protection Foundation

Find additional articles by