The Derivative Works Right

Media Law Prof Blog

Christina Bohannan, University of Iowa College of Law, has published Taming the Derivative Works Right: A Modest Proposal for Reducing Overbreadth and Vagueness in Copyright, at 12 Vanderbilt Journal of Entertainment & Technology Law 669 (Summer 2010).

Copyright Law and Fan-Made Derivative Works

Media Law Prof Blog

Patrick McKay, Regent University School of Law, has published Culture of the Future: Adapting Copyright Law to Accommodate Fan-Made Derivative Works in the Twenty-First Century. Fan-made derivative works based on works of popular culture have a Here is the abstract.


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Green on New Frontiers for the Derivative Work Right in Video Games @j_remy_green

Media Law Prof Blog

Remy Green, Fried, Frank, Harris, Shriver, & Jacobsen, LLP, is publishing All Your Works Are Belong to Us: New Frontiers for the Derivative Work Right in Video Games in volume 19 of the North Carolina Journal of Law and

US District Court Finds Digitally Remastered Pre-1972 Sound Recordings Are “Derivative Works” Covered By Federal Law – Dismisses Suit against Broadcaster Seeking Over-the-Air Performance Royalties

Broadcast Law Blog

The Court, based on evidence provided by the sound engineers who remastered the digital versions of the songs, found that there was enough originality in the remastering process for the digital versions to be copyrightable as “ derivative works.” A derivative work is a separate work, based on the original, which can itself be copyrighted if there is some creativity in the new work.

Supernatural Fiction Authors, Moral Rights, and Derivative Works

Media Law Prof Blog

Jacqueline D. Lipton, Case Western Reserve University Law School, is publishing Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral Rights Agendas in the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract. In recent

Transformative Use and Derivative Works In Property and Copyright

Media Law Prof Blog

Christopher M. Newman, George Mason University School of Law, has published Transformation in Property and Copyright as George Mason Law & Economics Research Paper No. 10-51. Here is the abstract. Copyright requires us to distinguish between two different ways of

Bam! Pow! Blocking Copyright Claims In Derivative Works Based On Comic Books

Media Law Prof Blog

Vincent James Scipior, University of Wisconsin Law School, is publishing Spider-Man and His Amazing Friends: Trapped in the Tangled Web of the Termination Provisions, in the Wisconsin Law Review (forthcoming). Here is the abstract. With great power there must also

Court of Appeals Finds That Digital Remasters of Pre-1972 Sound Recordings Likely Do Not Result in New Copyrighted Work That Would Bring These Songs under Federal Law – Reversing District Court Decision

Broadcast Law Blog

The Court of Appeals concluded, for several reasons, that there was likely insufficient creativity in the remastering of the pre-1972 sound recordings to make them new post-1972 copyrighted works and that, even if they were creative enough to merit copyright protection as a derivative work, that did not end the discussion, as portions of the original pre-1972 work were included in any new work and those portions themselves had to be licensed.

Podcaster Sued for Copyright Infringement for Using Music without Permission – Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting

Broadcast Law Blog

While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to reproduction and distribution of the copyrighted songs and the right to make derivative works – all rights given to copyright owners under the Copyright Act.

Learning Copyright Law from TV’s The Good Wife – Compulsory Licenses, Derivitive Works and Parody and Fair Use

Broadcast Law Blog

The two rights principally dealt with were the right to authorize the making of a reproduction (often referred to as a “ mechanical right “) and the right to make a derivative work. In order to sue the TV show for using the melody that the band had come up with, the lawyers had to find a way for the band to have a copyright in the work that was used in the TV show.

Appeal of Public Performance Rights in Pre-1972 Sound Recordings Referred to NY State Court for Interpretation – What Issues Might Radio Broadcasters Be Facing?

Broadcast Law Blog

prohibiting bootlegging of the recordings), none has an explicit statutory grant of a public performance right such as that collected by SoundExchange for post-1972 works. If these songs were in fact new copyrighted works when they were digitized, then they should not have been excluded from the SoundExchange payments. In deciding this issue, the courts will be faced with deciding whether the digitization is a creative work entitled to copyright protection in and of itself.


KWIKA Entertainment Law Blog

A common question clients ask me is whether they are free to use images found on the internet in their own works. Tags: Attribution License Copyright Licensing No Derivative Works License [This blog entry originally appeared at] For example, a friend in the printing industry recently told me that he used images he found on Google Image Search as part of a template he [.].

Copyright My Costume?


The Indians , mostly working-class African Americans, traditionally craft elaborate costumes costing thousands of dollars to wear as they parade through the streets on Mardi Gras. As the tribal costumes are expensive to make, and the Indians are mostly working-class, some tribes make paid appearances at non-Mardi Gras events for a small gain. A photograph of the costume would then potentially be protected as a derivative work.

Using Music in Radio or TV Productions - Why ASCAP, BMI and SESAC Licenses Usually Are Not Enough

Broadcast Law Blog

ASCAP, BMI and SESAC are commonly known as the Performing Rights Organizations (or PROs), as they grant music users only a single right – the right to make public performances of musical compositions (or " musical works "). So, for the Montana broadcaster to take a well-known song and to change the lyrics for her PSA required that the broadcaster get permission to make a derivative work (and probably to make reproductions, too, if copies of the re-recorded song were made).

New Text-to-Audio Function “Kindles” a Copyright Controversy


that’s an audio right, which is derivative under copyright law.&# Copyright infringement results from a violation of the copyright owner’s exclusive rights , which include the right to reproduce the copyrighted work, prepare derivative works based on the copyrighted work, distribute copies, perform the copyrighted work publicly, and display the copyrighted work publicly.

Using Music in Advertising or In a Video Production? Secure the Necessary Rights - ASCAP, BMI and SESAC Licenses Are Not Enough

Broadcast Law Blog

A copyright holder in a musical composition has the right to prepare " derivative works " of that composition. A derivative work is one that uses the original copyrighted material, but changes it somehow - like putting new words to an old tune. The copyright holder in both the musical work and the master recording has an exclusive right under the copyright law to license the reproduction (i.e. the duplication or copying ) of the work.

“Watchmen” Settlement Reached, But the Fight Could Have Easily Been Avoided


Mendelson is right when he points out that Warner Brothers’ legal department messed up royally when it failed to ensure that Warner owned the rights of the film before the studio began production, and that a legal malpractice suit is probably in the works. After a nasty public battle between media giants Warner Brothers and 20th Century Fox , comic book fans can once again look forward to March 6.

Remixing and Crowdsourcing

Media Law Prof Blog

Lipton, University of Akron School of Law, and John Tehranian, Southwestern Law School, have published Derivative Works 2.0: Jacqueline D. Reconsidering Transformative Use in the Age of Crowdsourced Creation in volume 109 of Northwestern University Law Review (2015). Here is

Kickstarter Removes 'Where the Wild Things Are' Sequel Proposal

THR, Esq. Entertainment & Media Law Blog

The book was to be dedicated to the memory of Maurice Sendak, but HarperCollins registers a takedown notice over a violation of the Sendak estate''s right to create derivative works. read more. THR, Esq. Tech Where the Wild Things Are Business Maurice Sendak

Entertainment Law Asked & Answered – Grand Rights and Sound Recordings?

Gordon P. Firemark

and among these is the right of the copyright owner to control the reproduction (copying) and the making of derivative works of both the composition and the recording. And, when you make a film or tv show, you are making a copy of these elements, and incorporating them into your film or show, a derivative work. In this Asked & Answered video, I answer a question about licensing sound recordings for use in a live-stage production.

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When is a Parody a Parody? – Entertainment Law Asked & Answered

Gordon P. Firemark

Changing lyrics in the way you’ve described is really just making a derivative work… And that’s one of the exclusive rights reserved to the copyright owner. Changing lyrics in the way you’ve described is really just making a derivative work… And that’s one of the exclusive rights reserved to the copyright owner. AUDIO: TRANSCRIPT: When is a parody a parody?

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Using Celebrity Guests’ Photos to Promote an Interview Show – Entertainment Law Asked & Answered

Gordon P. Firemark

A: (address copyright, derive works, right of publicity, and approval rights). AUDIO: TRANSCRIPT: [link]. Matt has a question about promoting his podcast episodes with images of his celebrity guests. I’m entertainment lawyer Gordon Firemark, and this is Asked and Answered, where I provide answers to common legal questions, so you can take your career and business in entertainment to the next level… Q: I’m curious about image usage.

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In Latest Court Filing, ROSS Fires Back at Thomson Reuters’ Claims of Copyright Infringement

Media Law

“Plaintiffs have not properly alleged a single instance in which ROSS — directly or indirectly — used, copied, reproduced, or prepared derivative works of any protectable Westlaw material, if there is any such material,” ROSS’s brief says.

JETL Symposium Video Now Available


Video footage from the Vanderbilt Journal of Entertainment and Technology Law’s annual symposium entitled Drawing Lines in the Digital Age: Copyright, Fair Use, and Derivative Works is now available here. Tags: Uncategorized copyright derivative use fair use symposium Vanderbilt

Copyright Law Basics – Entertainment Law Asked & Answered

Gordon P. Firemark

So here goes: When a person creates an original work of expression that is developed an idea and set it out in His or her own particular style and choice of words, and then fixes that expression in a tangible form such as a recording, setting pen to paper, or typing it into a computer, Or Filming the work, that person immediately owns a copyright in his or her work. The owner of a copyright has a set of exclusive rights with respect to that work. VIDEO: [link].

Law 100

How to make sure your production doesn’t get shut down.

Gordon P. Firemark

So, any changes that are made without approval amount to the creation of unauthorized derivative works. Well, for one, present the work as it was written. At worst, it's disrespectful of the authors, the work, and of the audience who are misled into thinking they are seeing what the playwright intended. How to make sure your production doesn't get shut down.

Asked & Answered: Video/Film/recording performances of plays.

Gordon P. Firemark

Q: I work in educational theater. They’re making and distributing copies of a derivative work of the play. Every year we revisit the same topic: Filming performances. I keep telling the director and others that it is simply not legal to record a performance. The response I always hear is that they never sell the film. They are only making an “archival copy&# which is given to the cast. I know it’s illegal.

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Having a Character in a Play Sing a Song (Grand Rights) – Entertainment Law Asked & Answered

Gordon P. Firemark

And, publishing the play with the lyrics is both making and distributing a copy of those lyrics, and making a derivative work from the original composition. AUDIO: TRANSCRIPT: [link].

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Getting a tattoo? If you’re in the media you need to get the copyright too!

Gordon P. Firemark

So, if you’re an on-camera personality, whether an actor, reality show contestant, talk-show host, newscaster, or sports-figure, you can expect that your next contract will include some language stating that you have the complete right and authority to enter into the contract and to grant the rights included in the agreement, which will likely include the right to display, reproduce and make derivatives of any body art, adornments or stylings you may have.

Why theatre authors are more powerful than screenwriters.

Gordon P. Firemark

Historically, the playwright (or the bookwriter, composer and lyricist of a Musical) has/have been given great deference when it comes to creative matters relating to their work. Shakespeare's work is no longer protected by copyright, so it can be freely used, changed, adulterated, etc., but works of modern authors generally do enjoy copyright protection. Authors in theatre enjoy privileges and approval rights not held by their screenwriting brethren.

Treading the Line: Fair & Derivative Uses


This year’s symposium was entitled Drawing Lines in the Digital Age: Copyright, Fair Use, and Derivative Works. The symposium covered a variety of topics related to digital copyright, but the focus was on exploring the intersection of fair and derivative uses of copyrighted works. Section 106(2) of the Copyright Act grants copyright owners the right “to prepare derivative works based upon the copyrighted work.”

Clarification on Demand Media: Two Contracts

Media Law

After my earlier post about Demand Media , I received a comment from a Demand Media community manager who said that the contract I cited is not the contract that applies to bloggers. I went back and checked the contract that was presented to me when I was invited to migrate my BlogBurst account to Demand. I see now that there are, in fact, two contracts, both presented on the same page.

9 Tips to keep your podcast legal

Gordon P. Firemark

Copyright is a “bundle of rights” belonging to the “author” of a work of expression. This bundle includes the rights to copy, distribute, display, perform, and make derivatives works based on the underlying work. Protection exists from the moment the work is created, whether or not the author does anything to register the copyright, and whether or not there’s any copyright notice affixed to the work.

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Should there be a “Director’s Copyright” in stage directions? (Reader survey)

Gordon P. Firemark

The trouble is, under copyright law, a copyrightable work created by an employee in the course and scope of his employment (as with a director hired to stage a production), belongs to the employer, rather than the employer. This is one part of the often-misunderstood “work made for hire&# definition contained in the U.S. I’ve recently been grappling with a question of whether a theater director’s efforts to stage a play or musical can be protected by copyright.

Missing Music On Streamed TV Programs Highlights Rights Issues for Podcasters and Video Producers

Broadcast Law Blog

We have written before (see, for example, our articles here and here ) about the need to get permission from the copyright holders in both the musical work (or musical composition – the words and music to a song) and in the sound recording (or master recording – the song as recorded by a particular band or singer).

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Cather in the Rye Part 2: Electric Boogaloo

Trademark, Copyright, and Entertainment Law Forum

This is a derivative work. He controls any derivative work. However, only the copyright holder of the original work is allowed to control sequels to that work. Most of us have read J.D. Salinger's classic novel The Catcher in the Rye. Not many of us ever tried to write a sequel to it. (As

Asked & Answered: My Film’s been infringed. What now?

Gordon P. Firemark

Copyright infringement is the unauthorized copying, distribution, performance/display or making of derivative works based on the original work. Q: Around 1966 I and some partners formed an independent film company and made what many consider to be one of the best horror films ever made. I was the Production Manager, and played a major role in the picture. Many concerns consider the film to be in Public Domain, market products, and rip us off.

Artists Alert: From Our Friends at the Illustrators Partnership The Return of Orphan Works End Run

Music Technology Policy

At its heart is the return of Orphan Works. Twice, Orphan Works Acts have failed to pass Congress because of strong opposition from visual artists, spearheaded by the Illustrators Partnership. Therefore we’re asking all artists concerned with retaining the rights to their work to join us in writing. Read the 2015 Orphan Works and Mass Digitization Report. It would void our Constitutional right to the exclusive control of our work.

Copyright Clarification

Trademark, Copyright, and Entertainment Law Forum

Copyright law only covers these eight types of works: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

JETLaw Symposium this Friday!!!


Join us for the 2010 JETL Symposium: Drawing Lines in the Digital Age: Copyright, Fair Use, and Derivative Works. 9:00 AM — 10:30 AM Treading the Line: Fair and Derivative Uses. JETL’s annual symposium will take place this Friday, October 23, 2009 at Vanderbilt Law School.

#IRespectMusic: California Court Rules for The Turtles, Deals Crushing Blow to Sirius in Victory for Artist Rights on pre-72

Music Technology Policy

And neither is the derivative work created by the music genome–but that’s another lawsuit.). Score Round One for the Duke, the Count and Satchmo–Flo & Eddie pka The Turtles have won a crushing victory over Sirius XM requiring Sirius to license and pay royalties for Flo & Eddie’s recordings published before 1972.

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Professor Ginsburg on the Creative Commons License/Deed/Whatever

Music Technology Policy

I've identified some problems with the shoddy Creative Commons "audio" license/deed/whatchamacallit (second rate legal work at best). T]he author may come to regret the free, perpetual grant of rights in future modes of exploiting the work, particularly if she adopts the default license and does not reserve commercial uses and derivative works.

New Kindle's 'Read-to-Me' feature: copyright problems ahead?

Copyrights & Campaigns

That's an audio right, which is derivative under copyright law. The Copyright Act grants authors several exclusive rights, among them the right to "prepare derivative works based upon the copyrighted work" and "to perform the copyrighted work publicly." A pre-recorded "audiobook" is clearly a derivative work, and a company wanting to make and sell an audiobook must obtain a license from the copyright owner.