Talk:Derivative work

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Copyright violation?

Does the picture used as an example violate copyright law?

VMG - 24OCT2007

In looking at the page for the image, the author indicates each of the sources for the composite image as being from the wikimedia commons. Donald (talk) 10:10, 16 January 2008 (UTC)

Minor change

Should this page read "renting the prints was a copyright infringement". The word "renting" seems out of place. Was this perhaps supposed to be "releasing the prints was a copyright infringement"?

MP 02:00, 8 January 2007 (UTC)

Article needs work

Half the links are bad, article overall does not read very well. Perhaps I'll get around to it, but maybe someone else who's knowledgeable wants to jump in and fix it? I'm going to put a cleanup broilerplate on the article.

What generally constitutes the building blocks of "non-trivial" copyrighted material, and thus a derivative work, is a question that keeps many copyright lawyers in steady employment.

That line is not really appropriate. --Josh3736 05:56, 2 Feb 2005 (UTC)

Cleanup

I added the cleanup tag mostly because the first tag was removed with no explanation by an anon, but also because the article needs cleanup. Copyright lawyers, please step in. Deltabeignet 23:19, 13 January 2006 (UTC)

article clears some minor things up but also confuses me more

so ... is sampling of copyrighted songs legal or not? --Nerd42 19:12, 23 March 2006 (UTC)

Depends on the sampling; depends also on what you're using it for. Sampling for commercial use probably falls under the rights expressed by the property owner; that could be the artists or the record company. Probably want to look up Trademark Dilution as a side reference. 206.21.11.205 14:57, 6 April 2006 (UTC)

fan-fiction?...

@Nerd42: Sampling - The example referenced in the article:

>the Supreme Court found that although a parody of the song "Oh, Pretty Woman" by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense

>The mockery of “Oh, Pretty Woman,” discussed in Campbell v. Acuff-Rose Music, Inc., is a similar example of transforming a >work by showing it in a harsh new light or criticizing its underlying assumptions. Because of the parody's >transformativeness, the Supreme Court found the derivative work a fair use.

2 Live Crew, if I'm correct to assume from the original article, in the parody "Oh, Pretty Woman" didn't "sample" the original, they "transforming a work by showing it in a harsh new light or criticizing its underlying assumptions", and the song was not "sampled" but performed by 2 Live Crew after it was transformed.

http://en.wikipedia.org/wiki/Sampling_%28music%29 >2 Live Crew, a hip-hop group familiar with controversy, was often in the spotlight for their 'obscene' and sexually explicit lyrics. They sparked many debates about censorship in the music industry. However, it was their 1989 album As Clean as They Wanna Be (a re-tooling of As Nasty As They Wanna Be) that began the prolonged legal debate over sampling. The album contained a track entitled "Pretty Woman," based on the well-known Roy Orbison song Oh, Pretty Woman. 2 Live Crew's version sampled the guitar, bass, and drums from the original, without permission. While the opening lines are the same, the two songs split ways immediately following.[11]

A typical "sample" of copyright songs would not be able to generally use that defense, and therefore be an unauthorized derivative if I interpret the above Supreme Court ruling. In regards to sampling, permission and royalties need to be paid to the performer, and the holder of the copyright (lyrics and song-writing)

For more information on Sampling:

http://en.wikipedia.org/wiki/Sampling_%28music%29 >Legal issues >Sampling has been an area of contention from a legal perspective. Early sampling artists simply used portions of other artists' recordings, without permission; once rap and other music incorporating samples began to make significant money, the original artists began to take legal action, claiming copyright infringement. Some sampling artists fought back, claiming their samples were fair use (a legal doctrine in the USA that is not universal). International sampling is governed by agreements such as the Berne Convention for the Protection of Literary and Artistic Works and the WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

And if your too lazy: http://en.wikipedia.org/wiki/Sampling_%28music%29 Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.[13] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[14] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.

Related Terms and alternative definitions

I think we need links to terms like aggregated works and fair use

Is this definition compatible with the this article? -

DERIVATIVE WORK - 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'. 17 U.S.C.

Kctucker 09:55, 16 April 2007 (UTC)

Fair use is an exclusively American legal concept; how about also linking the related fair dealing, the equivalent in many common-law countries? 142.161.178.190 (talk) 04:17, 28 April 2008 (UTC)

Counterexamples

Expanding on Nerd42's and Kctucker's points, I would like to see more discussion of what does not qualify as a derivative work. I think the article needs clarification of the boundaries, which are now neglected, except some weak counterexamples with software (drivers, libraries). This article has virtually nothing to refute, for example, the claim that any book in English is a derivative work of Merriam Webster's Dictionary. Such a notion is obviously absurd, but I'd like some guidance on supporting less obvious claims. Isn't there a legal distinction between copyrighting content versus presentation? Facts versus phrasings? "You can't copyright facts" rings in my head. What's the bigger story?

I have made works about HTML at http://www.visibone.com/html/. I used and refered to HTML specifications at http://www.w3.org/html/. I typed and positioned all content from scratch, no phrases or diagrams are clones of those in the specs, yet the influence on content is clear. How is my work not derived from those specifications? I realize the edges must be very fuzzy, but certainly there is precedent for at least coarsely locating it.

Defining (or linking to) "fair use" helps, but I don't think it's complete to say "fair use" covers everything allowed and "derivative work" everything not.

(Incidentally I'm not concerned in my own case about my old HTML reference, more about an upcoming PHP reference.)

Bob Stein - VisiBone 13:24, 18 May 2007 (UTC)

Substantial Edits on December 22, 2007

I am attempting to revamp this article for clarity and usefulness. I hope I have addressed some of the previously stated concerns about this article. I've made some quite substantial edits that I hope they improve the article.

the changes made

The article was first of all quite sloppy, with numerous statements about derivative works that were not in context and did not create a cohesive picture of what a derivative work is. Many of these statements were also either not cited or were not cited in an appropriate format. I apologize to anyone whose contribution was deleted, but much of what previously existed would take too long to format into the cohesive description of derivative works I am trying to build. I've cleaned up the section on U.S. law and tried to categorize it into conceptual chunks that make sense. I've added subheadings to try and better delineate these categories.

There were also concerns that the article did not deal appropriately with the fair use doctrine, which is actually quite important in understanding the limits of the derivative work right. I added a section on fair use and linked to the fair use article.

I also changed the word "artistic" to "expressive" in the opening line of the article. I made this change to indicate that derivative works can include non-artistic works such things as computer programs or telephone directories, while still articulating the fact that copyright protection only extends to expressive works.

Finally, I added more statutory background. Knowing the statutory background is helpful in understanding copyright law, as it is a field that relies heavily on a statutory basis. Hopefully this change provides relevant law while maintaining a level of readability that is accessible to non-lawyers.

what still needs be done

The changes I made do not address the central concern that this article is U.S.-centric. Unfortunately, my understanding of international IP is extremely limited. In addition, the need for more and better examples, including counter-examples, still exists.

Donald (talk) 04:31, 23 December 2007 (UTC)

Derivative works of software

This section has a couple of problems. First, the statement that all cases dealing with derivative works of software are fact specific and don't deal with the issue broadly needs to be backed up with a citation. I'm not sure that it is even an accurate assessment of the state of the law.

Second, wikipedia really shouldn't give out legal advice, even in the form 'rules of thumb.' Aside from any sticky legal issues arising from someone following such advice, it really isn't encyclopedic material. —Preceding unsigned comment added by Donaldrobertsoniii (talk • contribs) 10:21, 16 January 2008 (UTC)

Supplying authority

I am working on supplying citations for statements that WLU questioned. It will take a while to annotate this. But I intend to plug away at it. PraeceptorIP (talk) 03:38, 14 November 2008 (UTC)

Mention on DailyKos

This article was mentioned and quoted on DailyKos.com by Markos Moulitsas himself. See [1] or [2]. Bearian (talk) 18:35, 5 February 2009 (UTC)

Photographs

It would be great if this article specifically addressed the issue of when a photo constitutes a derivative or transformative work. I find it unenlightening with respect to some questions about the media, e.g.:

1. If a photographer takes straightforward picture of a painting offered for sale on a public street, the painter has copyright rights?
2. If someone dresses up in costume, and a photographer takes their picture (a candid or a posed shot) on a public street, the subject has copyright rights?

(PS: US Copyright Office Circular 14: Derivative Works is a broken link.) --Elvey (talk) 20:27, 5 May 2009 (UTC)

I found some good guidance on question #2, particularly with respect to Wikimedia: http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Images_of_costumes_tagged_as_copyvios_by_AnimeFan --Elvey (talk) 19:25, 7 May 2009 (UTC)

West side story/Romeo and Juliet

It can be disputed whether the former is a derivate of the latter; further, if it, it must be noted that Romeo and Juliet is itself a derivate of previous works (cf. http://en.wikipedia.org/wiki/The_Tragical_History_of_Romeus_and_Juliet or http://en.wikipedia.org/wiki/Pyramus_and_Thisbe_. 94.220.254.157 (talk) 17:28, 28 February 2010 (UTC)

Pop-up ad example may be wrong

It is claimed in the article that pop-up ads create a derivative work of the web page that's partially covered up by the ad. However, the reference seems to state exactly the opposite, "The Court finds this argument unpersuasive ... Plaintiffs do not have any property interest in the content of a user's pixels, much less a copyright interest." Perhaps this example should be removed from the article or amended to explain that one window partially covering another window is not a derivative work? Maghnus (talk) 01:34, 9 August 2010 (UTC)