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When is Derivative Work A Violation of Someone’s Copyright?


It’s probably obvious that companies that own major properties, such as Marvel Characters, or Star Wars Characters, or characters that appear in popular video games, own the rights to sell, distribute, or license likenesses of those characters.

That includes the right to distribute and control what are known as derivative works. A derivative work is where a person has taken someone else’s character, song, painting, or other copyrighted expression, and transformed it into a new piece of art or a new expression of creativity.

What is a Derivative Work?

Let’s assume you owned the copyright to Star Wars’ Darth Vader. If someone paints and sells an exact picture of Star Wars’ Darth Vader, that is clearly an infringement on your copyright.

But now imagine that the artist paints Darth Vader but makes his normally black armor a bright yellow, and he’s standing under a tree in the forest. Is that a derivative work? It likely is, so long as the general public would recognize the character in the picture as Darth Vader. The expression of Darth Vader has its own, independent, creative mark, different than just a photorealistic picture of Darth Vader, but it is nonetheless a derivative work, still owned by the original creator/owner of the Darth Vader copyright.

Anything that transforms a pre-existing work into a new work can be a derivative work. For example, if you remixed music owned by someone else, or made a parody of their music, your work could be infringing on the original owner’s copyrights.

Even though you as a copyright owner still own and have the right to control derivative works, in order to get full copyright protection, the derivative works still must be registered as separate works with the copyright office to get all the protections that full registration provides.

Fair Use

Regardless of whether work is derivative or not, it is generally considered fair use (not a copyright violation) to use someone else’s intellectual property for the purposes of scholarship, education, parody, or news reporting, so long as the copyrighted work is only being used to the extent necessary.

So, for example, if a classroom teacher was using a Darth Vader image, or even showing some of a film with the character in it, to discuss a philosophy lesson on evil, that would likely be fair use.

Another area of fair use is where a derivative work transforms the original copyrighted work significantly, and not take or use too much from the original work. The new, derivative work also can’t have an economic impact on the original copyright holder—in other words, customer dollars can’t be diverted to the person making the derivative work, when they could or should have been spent on the original copyright owner’s works.

Questions about your intellectual property, or about patents, trademarks or copyrights?  Let our West Palm Beach copyright litigation lawyers at Pike & Lustig, LLP, help you. Call us at 561-291-8298 to get a consultation.


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