INTERNATIONAL SUMMER SEMINAR
“COPYRIGHT IN MOTION”
9-13 July 2012
CERDI – UNIVERSITE PARIS SUD – PANTHEON SORBONNE
UNIVERSITE PARIS 1
THE DERIVATIVE WORKS.
IN PARTICULAR, THE SEQUEL OF A FILM
PRODUCTION
THE DERIVATIVE WORKS
A derivative work is a work based on or derived from one or more
already existing works. Also known as a “new version”, a derivative
work is copyrightable if it includes what copyright law calls an
“original work of authorship”. Any work in which the editorial
revisions, annotations, elaborations, or modifications represent, as
a whole, an original work of authorship could be considered a
derivative work or a new version.
To be copyrightable, a derivative work must differ sufficiently
from the original to be regarded as a new work or must
contain a substantial amount of new material.
Only copyright owners have the exclusive right to produce
derivative works based on their original, copyrighted
works. Copyright on original works of authorship is
automatic, and registration is not required for a work to be
protected; protection attaches immediately when the work
is completed.
However, a copyright owner can grant permission to someone
else to make a derivative work based on his or her original. In
this case, if permission is granted - in the form of a license or
assignment - then creation of the derivative work is not
infringement. But if the original version isn’t yours and you
don’t get permission to use the original from its creator, then
you’re infringing that author’s copyright.
The Exception: "Fair Use"
The rights accorded to the owner of copyright related
to
authorize others to reproduce his work is subject to certain
limitations found in sections 107 through 118 of the copyright
law. One of the more important limitations is the doctrine of “fair
use.”
The doctrine of fair use has developed through a
substantial
number of court decisions over the years and has been
codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the
reproduction of a particular work may be considered fair, such as
criticism, comment, news reporting, teaching, scholarship, and
research. Section 107 also sets out four factors to be considered in
determining whether or not a particular use is fair.
1. The purpose and character of the use, including
whether such use is of commercial nature or is for non profit
educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to
the copyrighted work as a whole
4.The effect of the use upon the potential market for, or value of,
the copyrighted work
The distinction between what is fair use and what is
infringement in a particular case will not always be clear or easily
defined. There is no specific number of words, lines, or notes that
may safely be taken without permission. Acknowledging the source
of the copyrighted material does not substitute for obtaining
permission.
Copyright protects the particular way authors have
expressed
themselves. It does not extend to any ideas, systems, or factual
information conveyed in a work.
The safest decision is to get permission from the copyright owner
before using copyrighted material. The Copyright Office cannot give
this permission.
When it is impracticable to obtain permission, you should consider
avoiding the use of copyrighted material unless you are confident
that the doctrine of fair use would apply to the situation. The
Copyright Office can neither determine whether a particular use
may be considered fair nor advise on possible copyright violations.
If there is any doubt, it is advisable to consult an attorney.
THE SEQUEL, AS A DERIVATIVE WORKS.
There are many different types of derivative works:
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Television documentary (that contains archival footage and
photographs)
Motion picture (based on a play)
Novel in English (a translation of a book originally published in
Russian)
Sound recording (CD in which two of the ten selections were
previously published online)
Sculpture (based on a drawing)
Sequel of a film (using characters and other elements from the
original)
A sequel is a narrative, documental, or other work of literature, film,
or music that continues the story of or expands upon issues
presented in some previous work.
In many cases, the sequel continues elements of the original story,
often with the same characters and settings. A sequel can lead to a
series in which key elements appear in a number of stories.
In movies, sequels are common.
SEQUELS AND COPYRIGHT
The copyright on a sequel covers only new material, appearing
for the first time in the movie; it does not cover any preexisting
material from the original.
So, for example, the character of Spiderman is not covered by
the copyright on the film Spiderman, since the copyright on
that character pre-dated the movie; but any elements new to
the film received their copyright from the date of Spiderman
II’s creation.
What does it means?
FIRST
if you license a work from its author so you can create a sequel
based on the original movie, you do not obtain the copyright
on the original―you gain only the right to make the derivative
work agreed upon; the owner retains all rights to the original
and all its elements.
SECOND
the copyright on the original film is not extended by the creation of the
sequel. This used to mean more than it does today, since
copyrights exist for the life of an author plus 70 years, and if an
author makes a sequel of his own first movie, then his copyright
won’t change regardless.
But it means that if a second author makes a derivative work of the
first author’s original, the copyright on the elements of the original is
measured by the life of the original’s author―not the derivative
work’s.
With “new versions” of work becoming more commonplace, the lines
between a new creation, a derivative work and copied work can be
blurred.
THE ADVICE:
Before publicizing one derivative work you have created,
get a license or get a lawyer.
THANK YOU FOR YOUR ATTENTION
Avv. Angelisa Castronovo
Email: angelisacastronovo@gmail.com