Compilations and Derivative Works

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 23

in many kinds of copyrightable works, the authorship takes the form of "originality" in the expression of preexisting materials. An anthologist may coll ct and sequence poems written by others. A scholar may translate another's play from French to English. A cataloguer may prepare a directory by gathering and organizing information about individuals or businesses. If there is original authorship manifested in the anthology, the translation, and the directory, these works are eligible for copyright protection-but only to the extent of the copyright claimant's original contributions. If the underlying poems and play are in the public domain, as are the facts in the directory, they remain in the public domain for others to base their works on. If the underlying poems and play are still in copyright, their use by the anthologist and the translator does not alter the duration or ownership of their copyright.47 The anthology and the directory are examples of what the Copyright Act refers to as a "compilation"; a compilation as defined in section 101 is "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." The translaaon is an example of what is defined in section 101 as a "derivative work":

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."

The relationship and differences between compilations and derivative works are well described in the House Report:

Between them the terms "compilations" and "derivative works" which are defined in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. There is necessarily some overlapping between the two, but they basically represent different concepts. A "compilation" results from a process of selecting, briinging together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. A "derivative work," on the other hand, requires a process of recasting, transforming, or adapting "one or more preexisting works"; the "preexisting work" must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted.

How the definition of "original work of authorship" applies to a compilation has for many years been a subject of considerable dispute.

Both under the 1909 Act and the 1976 Act, a substantial number of courts had extended copyright protection to directories-even, routinely, to alphabetically organized...