Transformative Use vs. Derivative in Copyright Law
Copyright allows artists to exclusively reproduce the content they create and sell copies at their discretion. Copyright infringement has been a controversial issue for centuries. One ongoing controversy has been whether creators of original art that uses previously copyrighted material must pay for the use. Several standards have been established as guidelines, but it is a subjective area of the law.
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Legal Definitions
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A transformative work takes a previously established work of art and turns it into something new. A derivative work simply takes the work and changes a few aspects of it. The line between a transformative and derivative work can be extremely difficult to determine depending on the nature of the work. For example, music sampling is seen as derivative because the sections taken from other songs are key to the new song, so royalties must be paid to the original artist.
Fair Use
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The legal term for a work that uses another work properly is "fair use." To qualify as fair use, it must be demonstrated that there was no attempt to supersede the work being used. For example, a thesis analyzing a novel may quote long sections of the novel for the purpose of demonstrating the author's point would be considered fair use. Inserting the novel as an appendix to the thesis, however, would not be seen as fair use, as it infringes on the author's copyright.
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Parody
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Parody has been given special exception under the law. Parody is protected as free speech under American law; the author is using the work to either criticize the work itself or offer criticism to some other party. This is especially true of music, where it has been ruled that any parody of an existing song may be considered fair use and that anyone may write a parody of a copyrighted song.
Originality
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For a work to be considered transformative instead of derivative, it must demonstrate originality under the law. Minor revisions, annotations or other cosmetic alterations to the work do not qualify as originality; the work must be unique to the author, using only elements of other copyrights. The court generally defines this as "distinguishable variation" between the two works. In other words, the works must be obviously substantially different for the change to be considered transformative under law.
Intent of the Author
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The intent of the author is also considered in deciding transformative vs. derivative. Parody outside of music is generally protected in copyright because of its transformative nature. The author must demonstrate a different intent from the original work. The common example is Marcel Duchamp's alteration of the Mona Lisa. Despite only adding a few elements, such as a mustache and an obscene abbreviation, it completely alters the character of the work. It would be considered transformative because the message of the work has changed completely.
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References
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