What is "derivative work"

n. (context legal English) In copyright law, a work that is a variation of an original work sufficiently similar to contain protected elements of the original work, but sufficiently different to qualify for copyright protection independent of the original work.

In copyright law, a derivative work is an expressive creation that includes major copyright-protected elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.

Most countries' legal systems seek to protect both original and derivative works.In the US, 17 U.S.C. § 106(2) protects derivative works. For the UK, see UK Copyright Service, "Fact Sheet P-22: Derivative works" (Last updated: 10th December 2012). French law protects derivative works as "œuvres composites" or as “une œuvre dérivée.” See Article L. 112–13 of the French Intellectual Property Code (CODE DE LA PROPRIÉTÉ INTELLECTUELLE, Art. L.112–13). The German Copyright Act, UrhG, sec. 3, 23, and 69c No. 2, protects translations (Übersetzungen) and other adaptations (andere Bearbeitungen), as well as other types of elaborations such as dramatizations, orchestrations, and new versions of works. In Spain, Art.11 TRLPI grants protection to derivative works such as translations, adaptations, revisions, musical arrangements and any transformation of a literary, artistic, or scientific work. Art. 4 of the Italian Copyright Act affords protection to creative elaborations of works, such as translations in another language, transformations from a literary or artistic form into another one, modifications or additions that constitute a substantial remake of the original work, adaptations, “reductions” (intended as shorter versions of protected works), compendia, and variations which do not constitute original works. In the Netherlands, Article 10-2 of the Dutch Copyright Act states that reproductions in a modified form of a work of literature, science or art, such as translations, musical arrangements, adaptations, and other elaborations, can be protected as original, without prejudice to the primary work.

The Berne Convention, Art. 2, § 3 states: “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 of the original work.” This provision is incorporated into the TRIPS Agreement.

For a comparison of different countries' regimes for protecting derivative works, see Daniel Gervais, The Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs, 15 VANDERBILT J. OF ENT. AND TECH. LAW 785 2013; Institute for Information Law, Univ. of Amsterdam, The digitisation of cultural heritage: originality, derivative works, and (non) original photographs. They grant authors the right to impede or otherwise control their integrity and the author's commercial interests. Derivative works and their authors benefit in turn from the full protection of copyright without prejudicing the rights of the original work's author.