Derivative Works – When Do I Need Permission – copyright law

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Registration v. Application: A Copyright Circuit Split | Trademark and Copyright Law https://t.co/OeOTGvmPSn

Derivative works – when do I need permission? – Robert Pugh used with permission

Part of our copyright law series

Copyright gives the owner the right to:

Reproduce the work Distribute copies of the work to the public Perform the work publicly Display the copyrighted work publicly Prepare derivative works based upon the work


Free content

is a play on the word copyright and describes the practice of using copyright law to remove restrictions on distributing copies and modified versions

What is a Derivative work?

A derivative work is any new, original product that includes aspects of a pre-existing, copyrighted work. Also known as a “new version,” derivative works can include a painting based on a photograph, a photograph of a painting, a sculpture based on a drawing, a painting or photograph of a sculpture, as well as many other ‘variations’.

A work is derivative if it incorporates any copyrightable material. For example, if you painted an illustration based on a book or poem, the new work would be considered a derivative work under copyright law.

A new work is only classified as new, not derivative, if it does not actually incorporate any copyrightable material from that preexisting work.


Threshold of originality

The threshold of originality is a concept in copyright law that is used to assess whether a particular work can be copyrighted. It is used to distinguish

Who Can Produce Derivative Works?

Only the original copyright owner has the right to produce, and profit from, an original work by making a new derivative work. Only a copyright owner can give permission to someone else to make a derivative work based on the original. If permission is not granted, the secondary work is considered to be a copy of the original. This makes the new work’s originator liable for copyright infringement.

Courts are unpredictable in their interpretations of ‘derivative’, particularly in the area of exactly where the line between ‘derivative’ and ‘transformative’ lies (transformative works are generally considered ‘new and original’)

However it pays to err on the side of caution as some artists have paid dearly for not securing the correct permissions before making a derivative – In 1985, the artist Jack Mendenhall painted a mural based on a photograph originally taken by advertising photographer Hal Davis. A US federal court awarded Davis $11,000 in damages, $4,000 in legal fees, and granted him the painting’s copyright. Davis was also entitled to compensation for all future use of Mendenhall’s mural!

Basic rule is – if you’re not sure, get permission first.

A common-sense way to look at it – when your ‘new’ work is finished, stand back and look at it carefully…..ask yourself the question ‘Does this painting, or any part of it, look like a copy?

If the answer is yes, then you should get permission from the original artist to use or display it.


Copyright symbol

the ℗ symbol). The use of the symbol is described in United States copyright law, and, internationally, by the Universal Copyright Convention. The symbol
This post was brought over from 1stAngel where we had it placed originally
Isabella F A Shores
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Isabella F A Shores

I am the founder and Manager of several sites that cater for artists.I hope to chat to you on one of them!I am also an artist specialising in oils.In my spare time (haha) I live in Manchester and love animals and driving.I live with a long suffering BF and three crazy animals... or is that a crazy BF and.......
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5 comments for “Derivative Works – When Do I Need Permission – copyright law

  1. Rudy
    1st September 2017 at 9:55 pm

    I cannot speak for other countries, just for the US and in the US there is basically no hard set rules for when a derivative work is different enough to be considered a “New Work”. It is one big grey area and jurisprudence. Since my day job background is legal (different field and I am no attorney) I love this post and hope there will be more like it. Maybe you can post about “Fair use” (there are lots of misunderstandings about that) and also maybe about registering your work with the Library of Congress (US). Without this registration, claiming damages is a lot harder and it would also be harder to find an attorney to represent you, which is as hard as it is if there is not enough money in it.

    • Isabella F A Shores
      1st September 2017 at 10:14 pm

      Hey Rudy! You know members can create articles also LOL PLEASE feel free to write about anything you know about or are interested in 😀 http://ourartsmagazine.com/posting-an-article

      • Rudy
        1st September 2017 at 10:31 pm

        Yes I know, I don’t know Robert and if he is an attorney or not, but he did a great job and I don’t want to take anything away fro him.. Besides, I only know about US law and your magazine is international. I would love to write about something though. What is your (Abbie’s) interest or what do you think your readers will like? Is there a need for any particular subject? I just started to get involved in pinhole photography. Maybe that’s an idea?. I have a few pinhole pictures in my FAA port.

        • Isabella F A Shores
          1st September 2017 at 10:38 pm

          Robert actually allowed me to post this on 1stAngel and I brought it here. Copyright is open to be written about. Pinhole Photography is also something fascinating!

          It isn’t about what I want…. that’s why it is called OUR Arts magazine xxx We would love anything you bring!!

          • Rudy
            1st September 2017 at 11:05 pm

            Okie Dokie.. Give me some time, but i will work on something. I realize it is “our” magazine and I love that, but I just thought may there was something you personally would like to see in the magazine and coincidentally probably a bunch of other people as well lol (btw i don’t think that your notifications work yet)

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