The Right to Prepare Derivative Work

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 78

Among the most valuable rights given by the Copyright Act is the rigunder section 106(2) "to prepare derivative works based upon the coprighted work." The copyright owner thus has the exclusive right to covert her novel into a motion picture, to trarslate her play into a foreiglanguage, to make an orchestral arrangement of her piano piece, or tmake reproductions of her painting or sculpture-or to license third pesons to do so. As defined in section 101, a derivative woris 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, oadapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an originawork of authorship, is a "derivative work."

In the cases already discussed-infringing motion pictures based ocopyrighted plays or novels-although courts have traditionally analyzed these as involving "copies" under the 1909 Act or "reproductions" under the 1976 Act, they could just as well have analyzed them as alegedly infringing derivative works under what is today section 106(2)

The elements of proof are the same: the plaintiff must show that the dfendant copied protectible elements from the copyrighted work and thaas a result the infringing work is "substantially similar."

The derivative work need not be "fixed in a tangible medium" in order to make out a case of infringement. The live performance of an arangement of a copyrighted song, without the authorization of the copyright owner, will infringe section 106(2). (The performance, if public, wiconstitute a separate infringement under section 106(4).) Nor need anwords be borrowed from the copyrighted work. In a classic copyrighcase, Justice Holmes spoke for the Supreme Court in finding that a silenmotion picture adaptation of the novel Ben Hur constituted copyright ir.fringement.125.

In a...