Understanding Derivative Works
The following similar types of questions and their variations have surfaced in various Internet forums recently.
I make digital collages using other images I find on the internet. I only use images that are not copyrighted. A friend told me it’s still illegal. Is that true?
My friend makes mixes using parts of other songs. We want to sell them. Is it against copyright to do that? He’s only using pieces of the songs.
The answer in a nutshell is yes, it is illegal and it is against copyright law to do that, unless you qualify for an exemption under fair use.
Everything is Automatically Copyrighted (for 70+ Years)
In the case of the images that are not copyrighted, the more factual statement is probably that the images do not have a copyright claim (the ©symbol or the word “Copyright”) on them. They are almost without doubt copyrighted nonetheless. Here’s why.
After the copyright laws changed in 1976, anything artistic you create (story, music, film, art, photo, dance, etc.) is automatically copyrighted as soon as you put it into tangible form. That copyright lasts for the rest of your life plus 70 years. You are not required to put “Copyright” or the © symbol on it any more.
Prior to 1976, the copyright claim WAS required and if you published something without claiming the copyright, it was considered in the public domain - that is, free for anyone to copy or use. A work also enters the public domain after the copyright on it expires.
Given these facts, anything in the public domain today had to have been created a long time ago. Everything else is still copyrighted.
Derivative Works Are Not Permitted
When you incorporate all or part of a copyrighted work into a new work, you create what is called a derivative work. These are some examples:
- Making a statuette of a copyrighted cartoon character
- Using the words of a copyrighted poem in a song
- Making a film based on a copyrighted story or book
- Making a drawing out of a copyrighted photo (Think of the recent Barack Obama poster)
- Creating a game based on a character from a book (Harry Potter, for instance)
- Making an artwork that incorporates recognizable elements of other artworks (Sounds like our collage or music mix scenario.
All of these examples are derivative works, and you can understand why the copyright owners would be unhappy to see you profiting off of their work without compensating them.
When Is It OK?
As noted before, if a work is in the public domain, then it can be used freely. The painting of the Mona Lisa is a good example. Copyright laws didn’t even exist when it was painted. If you wanted, you could paint a faithful copy of it and sell it on E-bay as long as you didn’t claim it was the da VInci original.
You can also use the work if the copyright owner gives permission. Sometimes you have to ask for permission. Other times, copyright owners publish their works with the grant of a Creative Commons license. This type of license allows anyone to use the work under specific conditions without asking permission.
And finally, fair use allows you to reproduce a work under specific circumstances. Some of those circumstances include:
- news reporting
- teaching (including multiple copies for classroom use)