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What Is A Transformative Work?


Copyright law can be confusing, and one area where there is a lot of confusion is the extent to which you can alter or change an existing copyright and make it yours. In other words, when does a work that you create become a “new” work that is yours, giving you all the rights that a copyright owner would have?

Derivative Works are Protected

When you create a copyrighted work, you not only have the right to use, sell, distribute, license, or profit from the work, but you have those rights with any derivative works that come from your copyrighted work.

Let’s take an example, using the familiar superhero Batman. You likely know that DC owns the copyright to Batman. You could not just draw Batman on the side of a lunchbox and sell it, without violating copyright. So, what if you drew Batman as a dog? Put a dog in the Batman mask and then sell that picture. Can you do that?

The answer is likely no; although the actual Batman is not a dog, and you altered the original Batman picture, your “dog in a Batman” picture still derives from DC’s Batman and thus, still infringes on the existing copyright.

Changing a Work so Much it Transforms

But here’s where it gets confusing: In some cases, you can alter a picture so much that it goes from being a derivative work, to a transformative work. When that happens, your creation is considered to be brand new, and you aren’t violating anybody’s copyrights.

A transformative work must be a work that has a brand new meaning or expression. The test that is usually used is whether or not the general public would see a work as being brand new, and separate from the original work. Simply adding a filter or some sort of aesthetic change, won’t make a work transformative.

You cannot just substitute an element of the original work. To be truly transformative, something new must be added such as a new character or a different purpose.

If, for example, I painted a Batman mask on the picture of a US politician to show the politician is a hero, that may be transformative—I’m completely changing the meaning of the mask, and the purpose and use of the mask.

Other Factors Courts Will Look For

Courts will also look to how much of the original copyrighted work you used in your new work. The more that you use or borrow, the more likely the work you created will be considered to be derivative, and not transformative.

Courts will also look to harm—that is, whether what you created, actually harms the market or business opportunities for the original creator’s work.

Call the West Palm Beach business litigation attorneys at Pike & Lustig today for help with your intellectual property questions, or with any copyright related legal issues you may have.



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