What is the difference between a transformative and derivative work in United States Copyright law?

Copyright is a legal protection given to creators of works. Creators may be painters, sculptors, photographers, musicians, authors or a member of one of the many other creative occupations. Copyright allows creators to prevent other people from copying their works. Frequently creators are inspired by the works of other creators. When a creator is inspired to create a new work that is whole their own creation, that does not incorporate elements of the original work, then the new work does not infringe on the copyright of the original work. This is because copyright law protects the expression of ideas, not the ideas themselves.

For example, if an artist creates a painting of a tree, the copyright only extends to the artist’s painting. Other people are free to create their own painting for a tree without infringing on the copyright of the artist. However, if a photographer takes a picture of the artist’s painting, the photograph of the painting would infringe on the copyright of the artist. The photograph merely copies the painting with no added value. Therefore the photographer’s picture is a derivative work of the artist’s painting.

A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial
revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

If the photographer adds something to the photograph to make it more than just a photograph of a painting, the photographer can gain a copyright to the photograph but only to the degree that the photographer adds some artistic value to the photograph. But the artist can still claim that the photograph infringe’s on the artist’s copyright because copyright is an exclusive right. Copyright does not grant the photographer the right to publish the photograph of the painting, copyright allows the photographer the right to exclude others from publishing the photograph. Because the artist has the copyright to the original work, the painting, the artist can exclude the photographer from publishing the photograph because it is a derivative work.

The photographer can gain a copyright to the photograph which surpasses the copyright the artist has on the painting if the photograph can be shown to be a transformative work. If a work is found to be transformative, then the use of the original copyrighted work is considered fair use, and the transformative work does not infringe upon the copyright of the creator of the original work.

Section 107 of the 1976 Copyright Act are four elements courts must consider when determining whether fair use is an adequate and applicable defense: (1) the purpose and character of the work, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Section 107 of the 1976 Copyright Act describes certain types of works that fit within the purpose of fair use, such as criticism, comment, news reporting, teaching scholarship or research. The four factors are to be considered in examining the purpose. Courts have distinguished infringing derivative works from transforming fair use by requiring that the new work must supersede the objects of the original work altering the original work with new expression, meaning or message. A derivative work is one that merely presents an original work into a new way.

The amount of transformation that is necessary to bridge the gap between a derivative work and a transformative work is determined on a case by case basis in the courts.

To restate these points simply:

A derivative work may be copyrightable, but it infringes on the copyright of the original work. Merely moving a work into a different medium or changing the language in which the work is expressed is derivative.

A transformative work is copyrightable and does not infringe on the copyright of the original work. To transform the original work to into a new work, new creative expression must be added.

The distinction between a derivative work and a transformative work is a fact specific analysis that many people struggle to understand. It is a good idea to consult with an attorney that specializes in copyright law if you want to learn more about the difference between a transformative work and a derivative work in copyright law.