Compilations, Collective and Derivative Works

Copyright can protect not only an original work but also works that are collections of other works, or works based on preexisting works.  An alteration to the original work is called a derivative work and when a number of pre-existing materials are combined into a new work, it is called a compilation.  In case of derivative work as well as compilations, the scope of the new copyright is limited to the parts of the collection or derivative work that are original.

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”.

A derivative work is therefore a new work added to one or more pre-existing works.  For example, revised edition of a book, a sequel, or a movie based on a book are all derivative works.  The new derivative work is entitled to its own separate copyright, so long as the additional material is more than a simple editing change and contains materials that are original to the work.  A new copyright can be claimed for the additional material added to the pre-existing copyrighted material, but the new copyright will not affect the copyright status, scope, or duration of the copyright held in the underlying work(s).

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

Often times it is the author of the underlying work who is creating the additions or improvements to it.  However, in cases where the underlying work enjoys copyright protection, when a new author seeks to add material to a pre-existing work, the new author must get the permission from the underlying work’s copyright owner.  To obtain permission to use the underlying work, it is important to identify each and every copyright holder since there is often more than one copyright holder in any work.  For example, in case of a novel with some illustrations in it -the illustrator may hold a copyright in the illustrations and the writer may hold a copyright in the literary work.

A “compilation” 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 term “compilation” includes collective works.

A compilation is a copyrightable work that results from the author’s selection and arrangement of pre-existing material.  Compilations are of two types: (1) fact compilations and (2) collective works.   A “fact compilation” is created by selecting data that is in the public domain like names, addresses, and telephone numbers and arranging the data in some minimally creative manner.  Almanacs, catalogues, and other databases are also examples of fact compilations.

A compilation may also be a collective work when it is created by selecting and arranging copyrighted works into a new single work, such as a book of poetry, or book of short stories, a magazine, or newspaper.  The copyright in each poem, short story, or article remains distinct and separate from the copyright in and to the collective work as a whole.  To create the collective work from the works of various authors requires the individual seeking to create the “collective work” to get permission from each copyright holder.

Between them the terms “compilations” and “derivative works” comprise 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, bringing 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.

There is also a gray area between reproducing a work and creating a derivative work. One does not need to produce a perfect copy in order to infringe a copyright.  Otherwise, a copier could simply make a minor change (an unimportant word in a book, or a pixel or two in a computer image) and avoid infringing.  The test for infringement established by court cases is whether the copy is “substantially similar” to the original work.  There is no hard-and-fast rule determining when something is a substantially similar copy, and when it is a derivative work, since both will incorporate the original work in some way and also have changed material.  But the touchstone for a derivative work is the “recasting, transforming, or adapting” of the original work, often to a new form.

The special provisions for compilations and derivative works are contained in Section 103:

 (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

 (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Many works are protected by a number of copyrights.  For example, when a movie is made from a best-selling novel, the material that comes from that novel is protected by the novel’s original copyright.  The screenplay is a derivative work of the novel and has its own copyright covering its original aspects. (For example, added dialogue or the instructions for the staging of a scene.) Both are literary works. The actual movie, an audiovisual work, has its own copyright covering the things that are original to the movie and not in the screenplay, such as the director’s particular arrangement for a shot. The musical score of the movie also has its own copyright.  In each case, the copyright covers only what is original to that particular work.