Derivative works

Fact sheet P-22

Issued: 10th May 2007
Last updated: 11th November 2019
Fact sheet P-20: Derivative works
  1. What is a derivative work?

    A derivative work is a work that is based on (derived from) another work; for example a painting based on a photograph, a collage, a musical work based on an existing piece or samples, a screenplay based on a book.

  2. Making a derivative work
    1. Permission.

      Legally only the copyright owner has the right to authorise adaptations and reproductions of their work - this includes the making of a derivative work.

      The copyright owner is generally the creator of the original work, or it may be someone the creator has given copyright to (i.e. next of kin).

      Unless you are the copyright owner of the original work, you will probably need the permission of the copyright owner before making a derivative work.

    2. Exceptions that do not require permission
      • You will not require permission if the making and use of derivative work is carried out in a way that is expressly permitted in your country's copyright legislation:

        A typical permitted use would be within an educational establishment for the purpose of instruction and examination. Rules surrounding permitted actions are based on national legislation and will differ from country to country - please check you country's legislation for further details.

      • If copyright has expired (under UK law this typically means the author died over 70 years ago), the work will be in the public domain, and may be used as a basis for a derivative work without permission.
      • You may not require permission if the original work has a licence that explicitly allows the creation of a derivative work. The licence itself may also specify rules and conditions that must be adhered to.
    3. Can I claim that my copy is fair use/fair dealing, or de minimis?

      Unless your activities are explicitly allowed under law, there is no solid legal footing for such a claim.

      Fair use is a complex area and by its very nature tends to be quite subjective. When a case goes to court a judge will typically make a decision based on a number of factors including the purpose of the use, the nature of the work, the significance of the copied content and the potential impact to the owner's income and reputation. It's important to understand that while the judge may have guidelines and past cases to refer to, there are no simple rules and the outcome can be hard to predict. There have also been cases where a judge has ruled that a use was allowed only to have the decision reversed after appeal; a notable example of the was Bridgeport Music, Inc. v. Dimension Films.

  3. Copyright in the derivative work

    Provided it is significantly different to the original work the derivative work will be subject to copyright in its own right, and you will own copyright to the new content you have created as a result of your actions. Bear in mind that to be subject to copyright the creation of the derivative work must itself be an original work of skill, labour and judgement; minor alterations that do not substantially alter the original would not qualify.

    Any copyright in the original work remains unchanged; the creation of the derivative work gives no right to the original work being adapted. You cannot extend the duration of copyright in a work by creating a derivative work. If the original work is in the public domain, it will remain in the public domain; you cannot prevent anyone else using the same public domain work for their own purposes.

    • Copyright notices

      Copyright notices are generally helpful by stating to others the copyright status of the work and attributing ownership. In the case of derivative works it is often suitable (and can also be helpful) for the derivative work to show a copyright notice for the original material as well as for the new work.

      For example:

      Copyright © 2019 John Smith, (adapted from 'original work'; copyright © 2012 Joe Bloggs).

  4. Can a derivative work be registered?

    Yes. If the derivative work contains new content or represents significant development in its own right, it will be subject to copyright and it may therefore be registered in the normal manner.

Creative Commons licence

This fact sheet is Copyright © Copyright Witness and protected under UK and international law.
The use of this fact sheet is covered by the conditions of a Creative Commons Attribution-Non-Commercial-No Derivative Works License.
This fact sheet is intended only as an introduction to ideas and concepts only. It should not be treated as a definitive guide, nor should it be considered to cover every area of concern, or be regarded as legal advice.