Wikipedia Deep Dive

Derivative work

12 min read

In 1975, a man named Jeffrey Snyder filed a copyright on a toy bank shaped like Uncle Sam. The toy was charming: you placed a coin in Uncle Sam's outstretched hand, pressed a lever, and the mechanical figure appeared to drop the coin into a carpet bag. Snyder didn't invent this toy. The original design dated to 1886, nearly a century earlier. But Snyder had made a new version, tweaked and modified for modern manufacturing, and he planned to sell them during the American Bicentennial celebration.

Then another company started making almost the same toy. When they tried to import their banks, U.S. Customs blocked them, citing Snyder's copyright. The rival company sued—not to claim they hadn't copied Snyder, but to argue that Snyder had no valid copyright to copy in the first place.

They won.

This case, known as Batlin, cut to the heart of one of copyright law's trickiest concepts: the derivative work. What happens when you take something that already exists and make something new from it? Who owns what? And how different does "different" need to be?

The Basic Idea

A derivative work is exactly what it sounds like: a creative work that derives from something else. Translations are derivative works—you take a French novel and render it in English. Movie adaptations are derivative works—you take a book and transform it into a screenplay. Musical arrangements are derivative works—you take a composition written for piano and orchestrate it for a full symphony.

The concept seems simple enough, but it creates an immediate tension. On one hand, you want to protect the original creator. If you wrote a novel, you shouldn't have to watch helplessly as someone else translates it, sells millions of copies, and keeps all the money. On the other hand, civilization advances precisely because people build on what came before. Isaac Newton's famous line about standing on the shoulders of giants isn't just modesty—it's a description of how knowledge accumulates.

Copyright law tries to thread this needle. The original author gets to control whether derivative works are made from their creation. But if someone does make a legitimate derivative work—with permission, or in circumstances where permission isn't required—that derivative work gets its own, separate copyright protection.

What the Law Actually Says

The United States Copyright Act provides an expansive definition. A derivative work is "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."

That list—translation, arrangement, dramatization, and so on—gives you a sense of what lawmakers had in mind. But the phrase "any other form in which a work may be recast, transformed, or adapted" is deliberately broad. The law wants to capture the concept, not just a checklist of specific activities.

Here's the crucial nuance: to receive copyright protection, a derivative work must be "different enough from the original to be regarded as a new work" or must "contain a substantial amount of new material." Minor changes don't count. Tweaking a few words, shifting colors around, making purely functional modifications—none of this creates a protectable derivative work.

The new material must be original and copyrightable in itself. You can't claim copyright over a derivative work that consists only of uncopyrightable elements. Titles can't be copyrighted. Short phrases can't be copyrighted. Format can't be copyrighted. So a derivative work built from those elements alone wouldn't qualify.

The Uncle Sam Problem

This brings us back to Jeffrey Snyder and his Uncle Sam banks. The appeals court examined his modifications carefully. Snyder had changed the proportions of the toy. He'd altered some details. The new version was physically different from the 1886 original.

But why had he made these changes? Almost entirely because he was manufacturing the toy in plastic rather than metal. The modifications were functional adaptations necessitated by the different material—not artistic or creative choices. The court was unimpressed.

"To extend copyrightability to minuscule variations," the court wrote, "would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work."

The 1886 Uncle Sam bank was in the public domain. Anyone could make it. Snyder couldn't use a thin veneer of functional modifications to suddenly lock up the design. His competitor had certainly copied from Snyder's version—that wasn't in dispute. But Snyder had no copyright to infringe.

Mickey, Donald, and Pluto

A similar principle emerged in a case involving Disney characters. Two different companies had licenses to make Disney toys. One accused the other of pirating its Mickey Mouse, Donald Duck, and Pluto figures. The accused company admitted using its rival's toys as models.

That admission, remarkably, didn't matter.

The court explained that the only protectable aspects of a derivative work are "the non-trivial, original features contributed by the author or creator." When they looked at the plaintiff's Disney toys, they found "no independent creation, no distinguishable variation from preexisting works, nothing recognizably the author's own contribution that sets [the] figures apart from the prototypical Mickey, Donald, and Pluto."

Disney had already created these characters. The toy maker had simply rendered them faithfully in three dimensions, adding nothing truly original. You can't claim copyright infringement when you have no copyright to begin with.

The Authorization Problem

Creating a derivative work without permission is, by default, copyright infringement. The original author has the exclusive right to authorize derivative works. This is explicit in the law: copyright owners can "prepare derivative works based upon the copyrighted work" and control who else gets to do so.

But here's where things get interesting. What if you create an unauthorized derivative work that qualifies as fair use? The Supreme Court addressed this in Campbell v. Acuff-Rose Music, the famous "Pretty Woman" case. The rap group 2 Live Crew had created a parody of Roy Orbison's "Oh, Pretty Woman" without permission. The court found this could qualify as fair use—a parody that comments on the original serves different purposes than the original.

More recently, courts have held that if you stay within fair use bounds and add sufficient original content, those original contributions in your unauthorized derivative work can receive their own copyright protection. In one case, someone created a parody stage adaptation of a motion picture without authorization. The court said their original additions were protectable, even though the overall work was unauthorized.

This creates a layered situation. You might have a work that infringes one copyright while simultaneously enjoying its own copyright protection for its original elements. The legal system can hold both concepts in mind at once.

The Annie Lee Tiles

Sometimes the question isn't about creation at all—it's about transformation of a physical object.

Annie Lee was an artist who sold note cards and small lithographs of her artwork. A company called A.R.T. bought her cards legally, glued them to ceramic tiles, and resold them at a higher price. Lee sued, arguing they had created unauthorized derivative works.

She lost.

The court held that simply bonding artwork to a new surface isn't original or creative enough to constitute making a derivative work. It's closer to framing a picture or mounting a print. The original art wasn't changed or reproduced—it was just displayed differently.

This ruling rested on the first-sale doctrine, a principle that limits copyright holders' control over physical copies after they've sold them. Once you buy a book, you can resell it, give it away, or use it to prop up a wobbly table. The copyright holder has no say. The same logic applied to Lee's note cards: once A.R.T. bought them, they could mount them however they pleased.

Had A.R.T. created actual reproductions—scanning the images and printing new copies—that would have been different. But they hadn't. They'd just glued cards to tiles.

How Much Change Is Enough?

The persistent question in derivative work cases is: how much transformation triggers copyright concerns? At one extreme, perfect copies clearly infringe. At the other extreme, merely being inspired by something doesn't create a legal relationship. Everything interesting happens in between.

When modifications are "de minimis"—a Latin phrase meaning "about minimal things"—courts won't find infringement. Changes so small they barely register don't count. You can't sue someone for adding a comma to your novel.

But determining what's de minimis and what's substantial involves judgment calls. Courts look at the nature of the changes, their significance to the work, whether they're functional or creative, and whether they contribute something recognizably new.

The requirement of originality traces back to a 1991 Supreme Court case called Feist v. Rural. That case established that copyright requires original creative expression, not mere effort or labor. You can't copyright a phone book just because compiling it took work. The same principle applies to derivative works: sweat equity alone doesn't earn protection.

International Variations

The derivative work concept exists internationally, though different countries frame it differently.

France prefers the term "œuvre composite"—composite work—though "œuvre dérivée" (derivative work) also appears. French law defines a composite work as a "new work into which pre-existing work is incorporated, without the collaboration of its author." The key distinction is temporal: the original work must exist first, then the new work incorporates it later. If two creators collaborate simultaneously, that's something else entirely.

Canada's Copyright Act doesn't explicitly define "derivative work," but it lists examples that match the concept: translations, conversions between dramatic and non-dramatic forms, sound recordings, cinematographic adaptations. Canadian courts have clarified that these rights require actual production and multiplication. Where there's no reproduction or creation of a new work incorporating the original, there's no copyright violation.

The Berne Convention, the major international copyright treaty, protects derivative works without using the term. It declares that "translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work." This formulation captures the dual nature of derivative works: they deserve protection while leaving the original's protection intact.

The Term Itself

The phrase "derivative work" is relatively new. It emerged during the revision process that produced the United States Copyright Act of 1976. Earlier copyright statutes had listed specific types of adaptations that could receive their own copyright—translations, dramatizations, musical arrangements, and so forth. The 1976 revision introduced "derivative work" as an umbrella term to simplify the language and capture the underlying concept.

This terminological shift reflected a broader change in how lawmakers thought about copyright. Rather than enumerating every possible transformation, they created a flexible category. New technologies and art forms would inevitably create new ways of adapting works. A single encompassing concept could accommodate them all.

The Bigger Picture

Step back from the legal details, and derivative works reveal something fundamental about human creativity. We don't create in isolation. Every song references other songs. Every story riffs on stories that came before. Every technological advance builds on previous discoveries.

The proverb about standing on the shoulders of giants captures this truth. Newton used it, but the phrase predates him by centuries. It acknowledges that progress is cumulative—that we see further because others lifted us up.

Copyright law exists in tension with this reality. By granting exclusive rights to creators, it necessarily restricts what others can do with those creations. Some scholars argue this restriction has "adversely impacted" the production of derivative works, making illegal what would otherwise flow naturally from cultural exchange.

Others point to the copyleft movement—the ethos behind open-source software and Creative Commons licenses—as a counterbalance. These frameworks explicitly permit derivative works, sometimes requiring that derivatives be shared on similar terms. They represent a deliberate choice to enable the kind of building-upon that copyright's default rules restrict.

The ongoing battles over artificial intelligence and creative works bring these tensions into sharp focus. When an AI model trains on existing works and generates new outputs, is it creating derivative works? The question has no easy answer, but it echoes the same fundamental concerns that animated the Uncle Sam bank case decades ago: who owns what, how much transformation matters, and what happens when new technology reshapes old categories.

Overlapping Rights

One final complexity: the right to prepare derivative works overlaps with—but isn't identical to—the right to reproduce a work. Congress acknowledged this overlap explicitly. Reproduction requires "fixation"—creating some tangible copy. But a derivative work might exist without fixed reproduction, at least theoretically.

Imagine a musician who improvises variations on a copyrighted melody. If they never record the improvisation, nothing is fixed or reproduced. But have they prepared a derivative work? The law suggests the derivative work right reaches situations the reproduction right might not.

This overlap creates some analytical messiness. Courts and commentators have noted that the boundaries between reproduction, adaptation, and transformation aren't always crisp. But the messiness reflects reality. Creative acts don't always sort neatly into legal categories. A translation is a reproduction of sorts, but it's also a transformation. An abridgment removes content while copying what remains. Categories blur.

The law does its best to manage these blurs, creating frameworks that are workable if not always elegant. And in edge cases—the Uncle Sam banks, the Disney toys, the Annie Lee tiles—courts make judgment calls about what counts as enough, what transformation is transformative enough, and who gets to claim ownership of the new thing that emerges when someone takes something old and makes it into something else.

That's the heart of derivative work law: managing the inevitable, necessary process of building the new from the old, while respecting the rights of those who built what we're building on.