In this first session of week 3 we're going to look at what is a derivative work? We're going to define it and look at some examples of derivative works. A derivative work is when we put it into this context it could be any of these. So derivative work covers the spectrum of, could be prohibited. What's an example of that? I write a book, you approach me, you want to make a movie. A derivative work, a movie of a book is a derivative work. And I say no. You can't do it. That's a derivative work and you can't make a movie based on my book without my permission. So I could say I want a lot of money and you say it's not worth that much and so it's prohibited. Or, it might be permitted. I say, yeah, I'll take that cash. That's a good deal. Sometimes you may say, no you can't make a movie on my book, about my book, and you say well I'm going to do it anyway. It's possible that it might be permitted under fair use. Let's say it's a particularly newsworthy thing and you're making a news report about a book which reveals very sensitive public information about corruption or bribery. You don't give me permission, but the court says that looks like fair use. That looks like a first amendment right, that looks reasonable. Or maybe I make a parody and I tell something funny. Well that might be allowed as well as a fair use defense. So maybe it's not exactly your book maybe it's a parody of your book, or my magazine is a parody of your magazine, or something else that's copyrighted. And finally, if the court does not give you a fair use exemption, or some other exemption from copyright and you do it without permission It's illegal. And so if your derivative works may be prohibited and not done, that's where copyright protection works. Or permitted and done or fair use as a defence, so done, but not permitted but legal or done not permitted and illegal. So what is a derivative work? Now that does come back to the question of let's define it. Essentially it's pretty broad. And it says it's the right to exclude everyone from creating a work based on an original copyright work. Just broadly define any work which is based on my original work is a derivative work of my work. So let's look at what's protected under derivative work? What are some examples? A derivative work would protect an author from having a movie made without their permission. Remember we talked about It's a Wonderful Life, well the studio's got permission from an author of a book that's not exactly the same story but it's kind of related and the movie was kind of based on the story. So they got permission. They said, we'd like to make a movie which is related to the story you told in your book. So they paid money, and they bought the rights to make this movie. You also can protect against a secondary work made without consent. I want to tell the story of what happened before the first Star Wars or something which happened to the cousin of the emperor or some other stories in the Star Wars universe. Or I want to tell the story of Harry Potter's cousin. These are secondary works. They're related to the original work. They're not based exactly on the original work but they're related to this story, theme, or story arc of the original work. And you can't do that. You can't create a secondary work without consent or, if you do that, It better be parody, or better be newsworthy, or have some other defense, because you got a good chance of being sued. So copyright will protect against these secondary works. You might be able to fight your case and get a fair use defense, but you might lose. Now here's an example of a fair use defense that was fought out in court. Mirage Editions versus Albuquerque Art. Mirage Editions published a book of paintings, or pictures. And this book of art,was beautiful art by a famous artist and, Albuquerque Arts said, you know what? I really like this guy's art. What I'm going to do is buy this book and cut out the pictures. I've gotta first sale defense for that. You cut up a book. If you buy a book you can write in it, you can cut it up, you can do whatever you want with it. So I'm going to cut out these pictures and then I'm going to sell the pictures one at a time. Well that's okay, you can do that. You can cut up a book and sell each chapter individually. You can't copy it, you can't put it online, but you could sell the physical chapters of the book. And not clear you'd find anybody who would buy it, but maybe you would. In this case the pictures are really pretty and they say we're going to sell these pictures. Now, if you were to frame them, you can sell them as framed beautiful pictures of art. And you can get a nice price for it by framing them you haven't transformed the pictures. It's still based on the original pictures published in a book that you cut out. And that's allowed under the first sale right. But they did something more. Instead of just selling the pictures they glued the pictures onto a ceramic tile, and then they put a glazing over the tile that was an artistic style of glazing that made the pictures look old. Made them look antique. So it was a special kind of treatment that altered the look of the pictures. By doing that, the court said no. And they ruled on this. The question going to the court, is this a violation of copyright? The defense was first sale defense. And the court says first sale defense does not apply in this case. Well, why? You bought the book. You cut it up. You're selling the pictures. But you're not. What the court said is you're selling a derivative work based on the pictures. You're not selling the pictures. You're selling something based on those pictures which transforms the appearance of the pictures makes them something new and creates a derivative work. In another court case in similar situation a company cut up a book, took out the pictures, did some framing of the put them on tiles and sold them. But, the glazing or covering didn't change the picture image. It wasn't significant modification, and in that case, the courts said putting a picture in a picture frame or even putting it on a tile is not a big deal unless you are altering the appearance of the picture. Then you are creating a derivative work. And so we can see this is a tough case because two cases very similar, the rulings are different. Well that's the nature of first sale defense, you can't always rely on it. And derivative works, how far do you have to modify something even a glazing could create a new work in the opinion of a judge. So the court ruling comes back to this idea in law of the right to prevent derivative works remains with the original copyright holder. If you're transforming a work or you're creating a derivative work in any way you no longer have the first sale defense because it's not the same thing. You're creating something new. So now, come back to what is a derivative work. A derivative work could be a permitted work. It could be a prohibitive work. It could be something which is excused under fair use, or it could be illegal. In all of these cases, the derivative work is something based on an original which is different. It must be different to be a derivative, but it must be based on something which is copyright protected to be derivative. So something which is new but which is derived from or based on an original copyright work. That's derivative work and it can be all four types of illegal, fair use, permitted, or prohibited under copyright. Thank you. [MUSIC]
