[Web4lib] Disney films based on public domain fairy tales are not derivative works

D.H. Mattison dmattison at shaw.ca
Mon Jul 12 18:46:22 EDT 2010

Thanks for asking about that Alan. I'm not a lawyer nor do I have a legal
background, but I had invested a lot of time in studying copyright when I
was working in an archives.

I think the Chilling Effects Clearinghouse has used derivative in two
senses. If you look at other sources that come up through a Google search of
"define:derivative work," you'll see that, from a legal perspective, a
derivative work has to contain material that's under copyright protection.

For example, this is the Wikipedia definition:

A derivative work pertaining to copyright law, is an expressive creation
that includes major, copyright-protected elements of an original, previously
created first work.

But you can still derive a work from a public domain source (I'm thinking of
literary works in particular), it's just that legally, IMHO, that doesn't
make any sense because copyright protection has expired. People may say,
aha, you derived that from Hamlet, but a copyright lawyer might say, so

I think there are two issues at play, the question of what constitutes a
derivative work under copyright law and what kinds of works can be protected
by copyright. 

My understanding is that in order for your "new" work to be considered
original and protected by your copyright, you would have to make creative
changes to the public domain work. Those mashup novels based on Jane
Austen's novels such as Pride and Prejudice and Zombies or Sense and
Sensibility and Sea Monsters are a perfect case in point. 

David Mattison
Aloha Fact and Image Finders
Victoria, BC
dmattison at shaw.ca
cameraworkers at gmail.com

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