- Find Attorney
Derivative work is an artistic or literary work derived from one or more pre-existing original works. A derivative work must contain sufficient original elements that would make it a new work in order to get a copyright.
According to 17 USCS § 101, 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. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work.
By definition, derivative works are substantially similar to the original work because a work is not derivative unless it has been substantially copied from a prior work. The Copyright Act defines a derivative work as "a work based upon one or more preexisting works." A derivative work is non-infringing if it is created pursuant to the consent of the copyright owner of the underlying work, or if it is based on a work in the public domain.
The Berne Convention on Copyright at Article 2(3) defines derivative works as translations, adaptations, arrangements of music and other alterations of a literary or artistic work, which shall be protected as original works without prejudice to the copyright in the original work.