Recently, we’ve been asked several times about the nature of a certain work as it relates to copyright infringement.
“Is my work a derivative of theirs? I should be fine, right?”
“Sure, I incorporate some of their copyrighted work, but mine is transformative enough, so I’m good, right?”
As with most gray areas, the answer is maybe. But gray areas are frustrating when you are trying to budget for intellectual property infringement risk on a realistic assessment. So what are the black and white areas of copyright law as it relates to derivative and transformative works?
A derivative work is a work, fixed in tangible medium that includes elements of an original, previously copyright-protected work. The original work is often referred to as the original, parent, or underlying work, and the work that incorporates it is referred to as the derivative. The Spanish translation of Dan Brown’s novel “The Da Vinci Code” is an example of a derivative work. Both the original and derivative works have separate copyright protection. Under the U.S. Copyright Act, the copyright protection afforded to the derivative work is only that which is new, on top of the original work.
A subset of derivative works is the doctrine of transformative works. Transformative works make use of copyrighted material, but do so in a way that the resulting work is fully copyrightable. The author of the transformative work does, however, claim copyright over material in the original work, as used in his or her transformative piece. But, in the face of such a lavish grant of rights in copyright, courts must carefully deem what is actually transformative (and thus, fair use), and what is just copyright infringement, using a four-part test.
And that’s where the black and white ends, and the gray begins. In the recently settled Cariou v. Prince case, the doctrine of transformative works as it stood was turned on its head. Briefly, Cariou published a book of photographic portraits taken in Jamaica. Prince, a known appropriation artist, added some content of his own on top of several of Cariou’s portraits. While no commentary, criticism or other motive existed to deem Prince’s work transformative under the Copyright Act, the court nonetheless found that no commentary or criticism was necessary (despite the statute’s language), and that Prince’s work is in fact, transformative. It’s a decision that has had the photographer-community up in arms, and the appropriation artist community rejoicing.
Taking it one step further, Prince is back in the news, this time, involving more than just a single artist. He may have involved…you. His latest exhibition, part of the Frieze Art Fair in New York, features blown-up screenshots (yes, screenshots) of random Instagrammers’ posts, without their consent or knowledge. Whereas Prince transformed Cariou’s photographs into “paintings” (by painting minimally significant things like eyeballs or a few leaves onto photographs), Prince did nothing to alter the images here, instead removing or substituting original captions and certain comments for his own would-be comments.
It remains to be seen whether any interested party files a lawsuit against Prince for misappropriation of their Instagram photos and copyright infringement for not being legally transformative enough. Because the content has been removed and displayed outside of the Instagram ecosystem, this isn’t a case of contacting the platform to take action. But when single screenshot works are selling for $90,000, it may not take long for someone to get in on the action. Or perhaps in Prince’s case, inaction?
8 Responses to “Copyright & Copywrong: What are Derivative and Transformative Works?”
Your post was extremely interesting because many people do not realize how grey area copyright, particularly fair use really is, and that the four-part test has different outcomes on a case-by-case basis. I also laughed at your tidbit about Prince being back in the news; he seems to do that a lot with copyright law. Although this time it is interesting that he is the one who may be in trouble for potential infringement. However, I think Instagram saw copyright infringement among users as a foreseeable possibility, and included a waiver in their Terms. This is great foresight to keep them out of disputes between users on their website: “UNDER NO CIRCUMSTANCES WILL THE INSTAGRAM PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND…(F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS…” They also indemnify themselves against claims as well. Your post was interesting, and I look forward to reading more!
Thanks Amy – glad you liked it. Prince is one of those artists that must keep his attorneys on the edge of their seats! Risky art – how Banksy-ian of him. The law can only be clarified and refined when artists like Prince are challenged – it’s definitely exciting to keep up with how copyright law is adapting in the face of such art.
Thanks for your blogpost. I have a question that maybe you could answer. I am an woodburning artist. I typically take a photo and make a stencil drawing out of it, which is then transferred to the wood through tracing. Once I get the basic outline burned, I do a lot of free-hand shading. So the burning is comparable but not a replicate of the photo. Really, all I need is the basic outline of the images I burn, although I don’t want to overstep any copyright laws. Can you tell me where my work fits in with the derivative/transformative/fair use laws? Thanks.
Hi Mark – your art sounds intriguing!
If I’m understanding your method correctly, it sounds like your final work is transformative enough to warrant copyright protection of its own, separate and apart from the photograph, and the stencil drawing. FYI – if you are the one who took the photo, you own copyright to that photo, and therefore, copyright on all derivative or transformative works that follow from it. Hope that helps!
Thank you so much for this blog post. It has been very helpful and makes this very clear. I also am an artist by hobby, and am always questioning when my art crosses over into a derivative recreation. I mostly do digital graphics, and get inspiration from other art work. Most of the time I may copy a style or combine styles, but I completely recreate the image myself. For example, if I am creating a bird, I may like the style of a head of one, and tail of the other, and I may use them as references to create a complete new bird using the forms of both, and maybe the coloring of another. Could I infringe on the copywrite of all of the work in that case?
Hi Bethany – thanks for your question. As I understand your work, it would seem like you are well within the realms of having created a totally new, separate work, even if pieces of your work have previously appeared in other works (that have copyright protection of their own).
As a reminder – “styles” and other intangibles are not subject to copyright. The actual drawing of a bird, as a whole, can be protected because it is an original work of authorship that is fixed in a tangible medium. But abstract concepts or laws of nature such as artistic style or mathematical proofs cannot be protected by copyright.
Good luck with your “Birdensteins”!
Yes, thank you for writing and publishing this information. I’m staying up late, doing internet research, reading LOTS, trying to wrap my head around copyrights vs trademarks, as well as derivative vs transformative copyright, etc. … and it’s grey like you said! You are doing a great service though with what you provide.
I still am unclear about a couple things and wonder if you could offer clarity.
Specifically, I’m wondering whether *if* one’s new work is considered “transformative”, would one still need the permission of the original copyright owner to go forward with it (i.e. a license)?
I’m proposing a project that is a creative re-imagining of what happened 75 years after the flood in the great Fritz Lang film “Metropolis”. None of the original characters of the film will be featured however the fact that they city was destroyed and the children abandoned plus the context of the city in ruin will be a key part of my proposed scenography. It will be a non-verbal choreographed music production for theatres.
Am I correct in understanding this (as I’ve described it) to be “transformative”? Also, in a situation like what I’m proposing, would I be able to give the project a title with the word “Metropolis” in it, again without need for license? or is this all too close to the original work?
I thank you in advance for allowing us to ask these sorts of questions.
Hi Justine – thanks for your questions.
If your work is determined transformative, no permission or license from any other party is required. With respect to your work based on “Metropolis”, the actual non-verbal choreography would not be eligible for copyright protection, as it is not fixed in a tangible medium of expression. However, a video recording of it and your set and scene designs as sketched out on paper (or on a computer program), are considered copyrightable. So, assuming your designs and choreography are original works, whether inspired by the film, or tangentially related, your work has a high probability of being deemed transformative (or a standalone new work altogether). While titles are generally not eligible for copyright protection, “Metropolis” may be protected by trademark. You may do some more research on this if you choose to move forward with the same title, or avoid the name (and risk) altogether. Hope this helps!