IP attorney Kohel Haver answers the question, "What is derivative work?"
- [Narrator] The most common copyright misperception is thinking if you change the source artwork a certain amount that you can avoid infringement and it will be okay to use the artwork or design without permission. This, of course, is a myth and in copyright law is referred to as derivative work. What is derivative work? Let me showcase a real-world example of derivative work.
So this website was using over 30 of my designs, logo designs specifically, and selling them to their own client. Now, of course, I had a problem with this. They didn't ask permission. They stole these off of my website and they started selling it on their website. So one of my designs that was on their website was this one. Now, if you look at what was on their website, it was small, but if you compare it to my original art, you could see that it was clearly my artwork derived from my original creative expression of the tribal bat.
So when I approached them and asked them to remove these from their website and gave them a copyright notice, they agreed and they said they would and I just assumed that they were going to do it, only to find out three months later that instead of removing it, they just changed it a little. Well, this is derivative work. They derived their design regardless of how many changes they made from my original artwork. This, of course, made me a little bit upset and I might have referred to them as, I don't know, ass hats? They didn't so much like that.
They sent a letter to Kohel and they said they didn't like the terminology I used to describe them so Kohel had this to say in response to them, "Okay fine. "You might not know what that term means, "but you are most certainly a thief." They didn't like that and they said Kohel shouldn't be calling their client a thief and threatened to sue him. He didn't like that so he told me to take my designs and copyright them all as a group so once again, I went to copyright.gov, registered it.
It only cost $55 and it protected all of them with a copyright registration and then Kohel turned around and filed a $3.5 million lawsuit against that company unless they immediately removed my designs. Well, guess what? They immediately removed them. So that's how a registration can really back up and protect your copyright on your artwork. So when it comes to derivative work, here's an illustration I created. If someone takes this and changes the color for example and uses it, that is an example of derivative work.
It's derived from my original design. I created it, not them. Even though they changed the color, it doesn't make it theirs to use. Someone might change the narrative of the art itself, turning the owl into an eagle, making the figure's face frown instead of smiling, adding elements like a tank top and editing the color, this is still derivative work because it's not their own original creative expression. They didn't create it. They merely derived their art from mine.
So here's another real-world example. This was actually the Louisiana State Police that were infringing upon my hawk artwork that we showed in a previous movie. It's definitely based off of my original creative expression which is this hawk. Even though they changed it a little bit, it's still derivative art. So let's ask Kohel Haver another question. What is derivative work? Here is his response.
- [Kohel] Any work that is based on your work is derivative work. So for example if we're talking about a song, if you write out the notes and the lyrics to the song, singing the song, performing it is a derivative. If you write out a story and then you perform it and you make a video of the story, that is a derivative. If you have a drawing on a piece of paper and you put it on a t-shirt or a notepad, that's all derivative work, work that's based on your work.
- [Narrator] Derivative work is anything derived from someone else's creative expression and not your own. So don't derive, create. If you didn't create it, you don't own the copyright. And if you don't own the copyright, no amount of changing or altering a design or calling it inspiration will void the original creator's claim to the copyright. So if you didn't get permission or pay to use it, you can't use it so don't derive, create.
- What's a copyright?
- What can you copyright?
- Registering a copyright
- How long does a copyright last?
- What's derivative work?
- Responding to infringement
- When to contact a lawyer
- Common copyright misconceptions