- Derivative works
Derivative works, based on prior works, are also protected. The United States
legislation has a definition of “derivative work”:A work based upon one or more pre-existing 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.” [Copyright Act 1976, §101]Even without such a provision, derivative works may be protected. Thus, in
Redwood Music Ltd v. Chappell & Co. Ltd [1982] R.P.C. 109 (U.K.: High
Court), the court discussed the copyright status of the arrangement of a
copyright musical work, thus:An author composes a work: the copyright in the original work vests in him. He then
licenses another person to arrange or adapt it – for example, to base a film script or
a play upon a book. The copyright in the arrangement then vests in the arranger, who
has originated it. Normally, of course, the licence to make the arrangement or
adaptation will carry with it a licence, for example, to perform the adaptation; but
theoretically, if it did not do so, a performance of the adaptation could be restrained
by the owner of the copyright in the original work as an infringement of that
copyright. But it does not of course follow that the owner of the copyright in the
original work owns the copyright in the arrangement, for example, the film script or
play; if that were so, it would lead to the absurd conclusion that the owner of the
copyright in the original work, having licensed the adaptation – possibly for a
substantial consideration – would be free to exploit the adaptation himself. ...- An unauthorized derivative work may be protected by copyright.
Berne Articles 2(3) and 2(5) provide:(3) 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 in the original work.
[Emphasis added](5) Collections of literary or artistic works such as encyclopaedias and
anthologies which, by reason of the selection and arrangement of their
contents, constitute intellectual creations shall be protected as such,
without prejudice to the copyright in each of the works forming part of
such collections. [Emphasis added]Since, under Berne, a derivative work, just like a compilation, may have
copyright, without affecting the copyright in any underlying work, a derivative
work should accordingly have copyright, even though it infringes the copyright
in the underlying work. In other words, a defendant cannot defend a copyright
claim by showing that the plaintiff’s otherwise original work itself infringes
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