What is considered a derivative work? US Copyright law defines &quot;derivative work&quot;: 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”. I'm not sure if the examples below can be considered derivative works as well: an academic paper that cites or refers to other papers a discussion thread on Internet (or each comment or reply on it) about a work a fanart or a fanfiction metadata a review or a criticism a work inspired by other works They don't quite 'represent' the original work, but still they are based on the original work. Would it be copyright infringement (regardless of being fair use) to create and distribute such work without explicit permission of original works' copyright holders? (edit) I've found an example: original work : poem &quot;Eloisa to Abelard&quot; by Alexander Pope(1688-1744) (potential) derivative work : film &quot;Eternal Sunshine of the Spotless Mind&quot; directed by Michel Gondry The film's title is a quotation from the poem, and the quoted part is cited within the film. Does it make the film a &quot;derivative work&quot; of the poem? Should the creation and distribution of the film have gotten permission from Alexander Pope (if he was still alive) or appropriate copyright holder of the poem? (edit 2) I looked for the word 'derivative' from dictionary: (typically of an artist or work of art) imitative of the work of another person, and usually disapproved of for that reason. – from Oxford Language (through Google search) Now I see why the examples on the law were limited to 'representation' of the original work. I'm not a native English speaker, and thought 'derivative' means 'inspired or motivated by something'...
Derivative Works under US law and the Berne Convention US Copyright law defines &quot;derivative work&quot; in 17 USC 101 as: 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”. Article 2 of the Berne Copyright Convention reads, in relevant part: (3) Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. Under 17 USC 106 one of the things that a copyright owner has the exclusive right to do or authorize is: (2) to prepare derivative works based upon the copyrighted work; Note that under the US definition, a derivative work is one based on an earlier work, not one that merely refers to a derivative work. Merely mentioning or citing a previous work is not enough to make the later work derivative. It must, in some substantial way, use and be developed out of the previous work. The classic examples of a derivative work are: a translation into another language; an adaptation into another medium or form (such as making a novel into a play or film); and making a sequel. But derivative works can be derivative in various other ways. Examples from the Question Let us look at the examples mentioned in the question: an academic paper that cites or refers to other papers This is a mere reference and is not at all derivative. However a paper that contained little or no original content, but consisted almost entirely of such citations might be considered derivative. a discussion thread on Internet (or each comment or reply on it) about a work Discussion or criticism of a work, or a reply to it, is not normally considered derivative. Such comments are not derivative of the work under discussion, nor of the previous comments. Quotations of either are likely to be permitted fair use, and so not infringing, although that will depend on the exact details of each case. a fanart or a fanfiction This is likely to be a derivative work, depending on how much of the source work is used, and whether distinctive details are reproduced. Note that ideas cannot be protected by copyright. (See 17 USC 102(b) for this.) So the idea of a person who turns into an animal of a particular type, or has some special power or ability or characteristic is not protected by copyright. But the details expressed in the source work, such as the mannerisms or appearance of a character, or the specific nature of a setting, can be protected, and to draw on them may be infringement, unless fair use applies. metadata &quot;Metadata&quot; is a very general idea. Typically the kind of information included in metadata is not protected by copyright, but in some cases it may be. a review or a criticism A review, criticism of, or comment on an existing work is not normally considered a derivative work. Quotes used in a review or criticism are often protected by fair use under US law, but if the quotation is excessive, and particularly if it allows the review to serve as a replacement for the original and to harm the market for the original, it may be infringement. a work inspired by other works Again, this depends. If only the general idea is imitated, then the later work is not derivative If detailed, distinctive, and specific characters, settings or plot lines are imitated, then the later work may be considered derivative, and infringing if permission is not obtained. The Nichols Case In the case Nichols v. Universal Pictures Corporation, 45 F. 2d 119 - Circuit Court of Appeals, 2nd Circuit (1930) Judge Learned Hand, a famous judge, wrote a very influential and often cited opinion describing when two similar plays are, and when they are not, infringements of one another. It is worth reading to better understand this issue, even though it is over 90 years old. What makes a Work Derivative So in general a work is derivative when it uses significant, distinctive, and detailed elements of a previous work, or is a revised or altered version of the previous work. Copyright in a Derivative Work If a derivative work is made with proper permission, or the source work is out of copyright, the author of the derivative work has copyright in all the original parts of the derivative work. However if the derivative work is infringing, and was created without permission, the author has no valid copyright in it at all. Fair Use and True Parody If a work is held to be a fair use of the original, it is not infringing even if it is a derivative work, this is an exception to copyright in US law. It may still be important to note that the work is derivative, because the author has copyright only in the original aspects. If a work is a parody, it is likely to be held to be a fair use. Note that in copyright law a true parody is a work that comments on the source work by imitating or mocking it. A work that imitates a source work merely to be funny, or to comment on general social conditions, or to make some other point, but not to comment on the original, is not a parody in US copyright law. Courts often refer to such a work as a &quot;satire&quot;, even though this is not the standard literary definition of &quot;satire&quot;. A Satire will usually not be a fair use of the source, or if it is, it will be for other reasons. Addition (in response to an addition to the question) original work : poem &quot;Eloisa to Abelard&quot; by Alexander Pope(1688-1744) (potential) derivative work : film &quot;Eternal Sunshine of the Spotless Mind&quot; directed by Michel Gondry The film's title is a quotation from the poem, and the quoted part is cited within the film. Does it make the film a &quot;derivative work&quot; of the poem? No. First of all, any copyright on the poem has long expired, it is in the public domain. Secondly, merely referring to a previous work in the title and citing it in the body does not make the later work derivative, it is merely a literary reference. A significant part of the earlier work would need to be used to make the film derivative. Unless much more was used than is mentioned above, this would not qualify even if the poem were still in copyright. Meaning of &quot;Derivative&quot; Like many other words of the English language, the word &quot;derivative&quot; has several different senses. The sense leading to the definitions: imitative of the work of another person inspired or motivated by something is mostly used in the context of criticism and review of works of art or literature. In copyright law, &quot;derivative&quot; is a technical term, defined by the definition section of the law, and by previous court cases. It is not unrelated to the meaning from literary or art criticism, but it is specific and by no means the same. The word &quot;derivative&quot; also has other specialized meanings, for example in chemistry, and in mathematics.
It would be copyright infringement. The script that you are planning to copy from is protected by law, so requires the copyright-owner's permission to create a derivative version (your own interpretation). If instead you write a completely different story inspired by the original book, you might not get sued. The problem is that there is a reasonable chance that you would accidentally duplicate part of one of the myriad adaptations, then the jury would have to decide whether it was just a coincidence, or copying.
Arguably, no one owns the copyright in the general case. This is a similar case to a previous question I've answered. In short, the US has a statutory provision which bars infringing derivatives from gaining copyright. In this particular case, it's helpful to take a look at what the Court of Appeals for the Second Circuit had to say. While evaluating transformativeness, they did not declare Warhol's works to be derivatives, but left that possibility open and stated it was closer to being a derivative than transformative fair use: Nonetheless, although we do not conclude that the Prince Series works are necessarily derivative works as a matter of law, they are much closer to presenting the same work in a different form, that form being a high-contrast screenprint, than they are to being works that make a transformative use of the original. That Warhol's prints might have no copyright attached to them does not mean that anyone can use them though – they are still very much based on Goldsmith's photo and the underlying copyright to the original still belongs to Goldsmith. This could well mean that Goldsmith would be able to use the Warhol prints as if she owned its copyrights. Update: The Supreme Court has now affirmed, albeit on a narrow appeal from the Second Circuit Court of Appeal which dropped the issue that this question is about. Only the first fair use factor of transformativeness was challenged by the Andy Warhol Foundation (AWF). Additionally, and more important for this question is that only a single use was ruled on: the licensing of one of the prints by AWF for a 2016 magazine article reprint following Prince's death. This is because Goldsmith dropped the wider infringement claims. Here's where I realize I missed a key distinguishing fact in the case: There was indeed a narrow license for use of the photo for &quot;artist reference&quot; in relation to an article to be published in a 1984 Vanity Fair issue. In effect, due to the license, the (probable) derivative could be considered non-infringing1. Nevertheless, the court ruled that the use in the 2016 issue was not fair (given there was no license for use beyond the 1984 article, AWF had to rely on a fair use defense). In other words, the Warhol prints as a whole are not necessarily infringing derivatives2, rather, the specific use in the 2016 article was affirmed to be infringing. In particular, I'd like to highlight the following from court: The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.” §107. The same copying may be fair when used for one purpose but not another. The full license text is not in any of the court decisions, so it's impossible for us to know for sure, but the portions that are quoted lead me to believe the license is vaguely worded. In particular, its in the realm of possibility that only the single derivative used on the 1984 article was licensed, but I would argue its reasonable to expect an artist to try multiple derivatives given a license for &quot;artist reference.&quot; This could potentially have been of some consequence as the print used in the 2016 article is not the same as the one used in the 1984 article. But since this case was initiated in district court by the AWF seeking declaratory judgment of non-infringement, my understanding of the matter is that once the case is passed back to the district court, it will enter in that declaration given Goldsmith dropped the wider infringement claims. Take this with a grain of salt, I'm not very well-versed in trial procedure.
Assumptions Let us assume that the code involved was created during the period of employment, was within the scope of that employment, and was validly work-made-for-hire (WFH). In that case, the code copyright is owned by the former employer.dn the person who wrote it has no more rights than a random stranger would. I am also going to assume US law. Ownership of Ideas Who owns the ideas, the knowledge of how these libraries work? No one does. In the absence of a patent, no one ever &quot;owns&quot; an idea. ]17 USC 102(b)](https://copyright.gov/title17/92chap1.html#102) provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Derivative Works Copyright law does prohibit anyone making a derivative work from a work protected by copyright without the permission of the owner. A derivative work is one &quot;based on&quot; the source work. The classic case is a translation. Exactly when a piece of software is a derivative work of another is fact-dependent. Bu several things are clear. If the source work is trivial and obvious, ther may not be sufficient &quot;originality&quot; for the source work to be protected by copyright at all. If the source work is not protected by a valid copyright, nothing is a derivative work of it. A &quot;hello world&quot; program, for example, is probably not original enough for any copyright. A straight-forward implementation of a basic algorithm like quicksort is probably not original enough, either. If there is only one way, or only a small number of ways, to express the ideas of the source work, the merger doctrine applies. This means that the expression of the work is merged into the idea, leaving the expression unprotected. When the merger doctrine applies, there is, in effect, no copyright. If a work copies ideas from a source, but none of its particular expression of those ideas, the result is not a derivative work, and is not an infringement of copyright. If a work is definitive, but is also a fair use of the source work, it is not an infringement. The usual four-factor fir use analysis must be made to determine this. In particular, if a work is highly transformative, it is likey to be found to be a fair use. Issues from the Question What if the new code (presumably, in the case of something simple) comes out exactly the same (even if I rewrite it without looking)? That Rather suggests that the work was too trivial to be original enough to have copyright protection at all, or else that there are only a few ways to express the idea, and the merger doctrine applies. But if neither o those were true, this might be an infringement. [* To be coninued*]
Copyright reserves to the copyright owner the exclusive right to reproduce the work (Copyright Act, s. 3; 17 U.S. Code § 106). Downloading a copyrighted work is a reproduction of that work and would be an infringement unless excepted (e.g. you have been given a licence, your download is fair dealing or fair use, etc.). Canada lists downloading as an example of infringment. And the United States says: Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution You say: &quot;uploading to Z library is considered illegal.&quot; This implies the content on Z library is generally protected by copyright and not licenced for distribution via Z library, but that is a factual question.
It is probably a word that can be used, but not definitively. Many words of general applicability coined by authors enter into the general lexicon. The process is similar, but not precisely identical, to the dilution of a trademarked term to become a generic descriptive term for anything in the category of items so trademarked. Early examples of originally trademarked words that entered the general lexicon are &quot;elevator&quot; and &quot;escalator&quot;. For example, the word &quot;grok&quot; coined by Robert Heinlein, is now part of the general lexicon, as is the word &quot;quark&quot; coined by James Joyce (although its current meaning has shifted). The word &quot;robot&quot; from K. Čapek's play R.U.R. ‘Rossum's Universal Robots’ (1920), would be another example of a word coined in fiction that has entered general use. The scene a faire doctrine also authorized public domain use of tropes and terms that have achieved wide use in a genre. As a rule of thumb, if three different authors have used a term to mean the same thing, or an author who is no longer in copyright has done so, it can be used freely. For example, regardless of who originally used it, the term &quot;mecha&quot; would not be protected by the doctrine due to its used by multiple authors and commentators in a particular science fiction sub-genre. &quot;Mentat&quot; is a close case, because it is overwhelmingly used in a specific series of books written by Frank Herbert and his son with licensing from his estate, and because the series has produced so many published properties, not only in books, but in TV and movies, it has been close to maximally protected from an IP perspective by the Herbert Estate, his publishers, and his audio-visual licensees. There is at least a colorable argument that use of the term in a fictional setting would be a derivative work, intended to evoke and be derived from the extended series of creative properties. The best counterargument that the term has entered the general lexicon, or in any case is not a protected derivative work, would comes from use of the term in a non-fiction sense which is not negligible, even though it isn't terribly common. Wikipedia notes two (probably unlicensed) commercial uses, one as a trademark and the other as an IT company name, in addition to two minor fictional uses, one with a similar meaning and one with a somewhat shifted meaning. Further, to the extent that the non-fiction use was great enough to show that it entered the general lexicon, at that point, fictional use would no longer be a derivative work because the work could be derived from many sources in which the Herbert estate does not have copyrights. A Google N-gram search could be used to evaluate that argument empirically. The use of the word in the early 19th century (before Herbert was born) is particularly promising, although the senses in which it was used pre-Herbert would have to be evaluated, and the context in which it was used post-Dune would also have to be evaluated (if all the uses are in his licensed books, it hurts the cause). A quick scan suggests that in the early 19th century that it was often used as a Latin or French word used untranslated for foreign flavor in English language works, so there is an argument that it is really a loan word not specific to Herbert. Much of the modern use is in fair use commentary expressly referencing Herbert's works and in obvious misspellings of the word &quot;mental&quot;. Particularly encouraging in the N-gram search are the uses of the word in independent science fiction novels including &quot;The Search for Snout&quot; (2014) by Bruce Coville, &quot;Dorsai!&quot; (2013) by Gordon R. Dickson, &quot;Eye of the Storm&quot; (2009) by John Ringo, and &quot;The Ghost Brigades&quot; (2007) by John Scalzi. Also, particularly notable is the use of the word in an independent non-Dune novel in &quot;Clockwork Lives&quot; (2015) by Kevin J. Anderson and Neil Peart, since Kevin J. Anderson was a co-author of some of the Dune novels and would have contractual obligations to the Herbert Estate as well as copyright obligations; signifying a concession of non-ownership of the term by the estate. This use in five independent fictional cases in the same genre in works published long enough ago for the statute of limitations for infringement to have lapsed (with late filed suits used to muddy the waters). This strongly advances the scene a faire doctrine validation of the word. The term is also used in a scientific journal article in 2008 in the Indian Journal of Experimental Biology, but in a related but not identical sense of the word. Another litmus test regarding whether a word is part of the general lexicon is whether it appears in more complete dictionaries, such as the OED, or Webster's Encyclopedic Unabridged Dictionary, or in a notable published thesaurus, None of the dictionaries and no thesaurus that I have in hard copy have that word, but this could be because mine are dated. An updated dictionary and thesaurus search would be probative evidence of this question. A thesaurus search for &quot;genius&quot; or &quot;prodigy&quot; that came up with &quot;mentat&quot; listed would be a good thing to look for. A third issue for general lexicon v. derivative work analysis would be whether the word can be derived by obvious use of affixes and suffixes and retroflex letters from words that are in dictionaries. For example, a word plus -ology (for the study of), or -itis (for medical conditions) would not generally be beyond the scope of legally permissible public domain use. This again is a close call in the case of &quot;mentat&quot;. Single words are also harder (but not impossible) to protect as derivative works, if not trademarked as well, than extended passages either verbatim or paraphrased or translated, which would weaken the derivative work claim, although it wouldn't be entirely without merit just because it was a single word.
Copyright is automatic: when you write something original, it is thereby copyrighted. Thus there is no act of "copyrighting". The only important act is registering. All versions of a work are covered by copyright protection. When you revise a work, the existing copyright still exists, and you have created a derivative work. If copyright is held by a known person, the expiration date is author's death + 70 years. In a work made for hire (the company owns the copyright), it is the earlier of is 95 years from first publication or the shorter of 120 years from creation. A revision does not generally affect the duration of copyright: however, if a joint work is created, the copyright on the underlying work expires relative to the death of the original author and the copyright on later parts created by a second (added) author is relative to the second author's death. So if A writes ch. 1-4 of a book, then adds ch. 5-8 subsequently with a new co-author B, duration of copyright for ch. 5-8 is determined relative to the death of B. None of that matters for a company web page.
Go to court and find out There is no doubt that humming a tune and recording it (or performing it in public) is a derivative work - a right reserved to the copyright owner. Whether it is fair use depends on the specifics of the case. From the tweet, we simply don’t have enough information, however, at a guess, it is probably not fair use. Fair use in law is Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Most people miss “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” - if you aren’t doing one of those things then you start behind the 8-ball when yo move to the 4 factor test. Note that the “criticism, comment, news reporting,” etc. must be about the copyrighted work - I can’t use your copyrighted work to, for example, parody a politician unless you are that politician. Many people have completely the wrong idea about what copyright infringement and fair use actually are, in part because the use of music on YouTube is allowed, not because it’s fair use but, because YouTube was smart enough to negotiate and pay for a permissive licence with music producers. For a full explanation, see this video.