Many creative works are derivative works of something else, entitled to their own copyright. A derivative work is one which is not only based on a previous work, but which also contains sufficient new, creative content to entitle it to its own copyright. However, if the underlying work is still copyright protected, the original copyright holder must also license the underlying work for reuse. In other words, a derivative work is not merely a work that is "based on" another work, a derivative work is considered a new work because of some significant amount of additional creativity that went into its production— all subsequent works based on another, previous work but lacking substantial new creative content are merely considered copies of that work and are entitled to no new copyright protection as a result (and should not be referred to as "derivative works", as this has a very specific meaning in copyright law). In either case, unless the underlying work is in the public domain (see Commons:Public domain) or there is evidence that the underlying work has been freely licensed for reuse (for example, under an appropriate Creative Commons license), the original creator of the work must explicitly authorize the copy/ derivative work before it can be uploaded to Commons.
In summary: you can't trace someone else's copyrighted creative drawing and upload that tracing to Commons under a new, free license because a tracing is a copy without new creative content; likewise, you cannot make a movie version of a book you just read without the permission of the author, even if you added substantial creative new material to the storyline, because the movie requires the original book author's permission— if such permission were obtained, however, the movie would likely then be considered a derivative work entitled to its own novel copyright protection. "Derivative", in this sense, doesn't simply mean "derived from", it means, "derived from and including new creative content which is entitled to a new copyright."
- 1 What is a derivative work?
- 2 If I take a picture of an object with my own camera, I hold the copyright to the picture. Can't I license it any way I choose? Why do I have to worry about other copyright holders?
- 3 If I take a photograph of a kid who is holding a stuffed Winnie the Pooh toy, does Disney own the copyright in the photo since they own the Pooh design?
- 4 Isn't every product copyrighted by someone? What about cars? Or kitchen chairs? My computer case?
- 5 Text
- 6 Maps
- 7 I know that I can't upload photos of copyrighted art (like paintings and statues), but what about toys? Toys are not art!
- 8 But Wikimedia Commons isn't commercial! And what about fair use?
- 9 But how can we illustrate topics like Star Wars or Pokémon without pictures?
- 10 What about images of copyrighted characters in public domain works?
- 11 I've never heard about this before! Is this some kind of creative interpretation?
- 12 Casebook
- 13 See also
- 14 References
- 15 External links
What is a derivative work?
- "A 'derivative work' is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a 'derivative work'".
In short, all transfers of a creative, copyrightable work into a new medium (i.e., from book to movie) as well as all other modifications of a work whose outcome is a new, creatively original work (e.g., from Shakespearean play into a modern rendition of a Shakespearean play with new wording or characters) are considered derivative works entitled to their own, new copyrights. Who is allowed to create such works? According to U.S. Copyright Act of 1976, Section 106:
- "(T)he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (...) (2) to prepare derivative works based upon the copyrighted work".
Unlike an exact copy or minor variation of a work (e.g. the same book with a different title), which would be considered a mere copy and would not result in a new copyright, a derivative work creates a new copyright on all original aspects of the new version. Thus, for example, the creator of The Annotated Hobbit holds a copyright on all of the notes and commentary he wrote, but not on the original text of The Hobbit, which is also included in the book, the copyright to which is owned by the Tolkien Estate. The original Estate copyright still holds, and then the annotations also acquire a new and independent copyright of their own. Likewise, the corporation that holds the copyright to Darth Vader (i.e., Walt Disney) has the exclusive right to create or authorize any derivative works of that character, including photographs or drawings of him which portray him in novel and creative ways, since (as court decisions put it) that is one aspect of the copyright holder's work that he or she might want to exploit commercially. In the same manner, anyone can make a movie based on The Bible, and may make their own movie called "The Ten Commandments" based on the Biblical chapter Exodus, but may not make a new version of the 1956 film, "The Ten Commandments", even with substantial new creative input, without getting permission of Paramount Pictures (the copyright holder).
If I take a picture of an object with my own camera, I hold the copyright to the picture. Can't I license it any way I choose? Why do I have to worry about other copyright holders?
By taking a picture with a copyrighted cartoon character on a t-shirt as its main subject, for example, the photographer creates a new, copyrighted work (the photograph), but the rights of the cartoon character's creator still affect the resulting photograph. Such a photograph could not be published without the consent of both copyright holders: the photographer and the cartoonist.
It doesn't matter if a drawing of a copyrighted character's likeness is created entirely by the uploader without any other reference than the uploader's memory. A non-free copyrighted work simply cannot be rendered free without the consent of the copyright holder, not by photographing, nor drawing, nor sculpting (but see Commons:Freedom of panorama).
Locations such as theme parks usually allow photography and sometimes even encourage it even though items of copyrighted artwork will almost certainly be included in visitors' photos. Such policies, however, do not automatically mean that such photos can be distributed under a public domain dedication or a free content license; the intent of a venue allowing photography may be to facilitate photography for personal usage and/or non-commercial sharing on social networking sites, for example. (See this discussion.) Also, the legal concept of de minimis can apply in such a setting: if the subject of your theme park photograph is your daughter eating an ice cream but someone in a Mickey Mouse costume can be seen in the background, this is not considered infringement nor a derivative work so long as it is clear from the photograph that you are interested in the girl and the frozen treat rather than the oversized rodent, and you may even market that image commercially (though you'd better be certain that Mickey really is "de mini", as it were, and his presence must not make that image more useful, more interesting, or more marketable than it would be without him).
If I take a photograph of a kid who is holding a stuffed Winnie the Pooh toy, does Disney own the copyright in the photo since they own the Pooh design?
No. Disney does not hold the copyright on the photo. There are two different copyrights to be taken into account, that of the photographer (concerning the photo) and that of Disney (the toy). You have to keep those apart. Ask yourself: Can the photo be used as an illustration for "Winnie the Pooh"? Am I trying to get around restrictions for two-dimensional pictures of Pooh by using a photo of a toy? If so, then it is not allowed.
Be aware, though, that Disney's protection strategy both relies on author's right (artistic property) and trade mark (extended to protect a design). The actual legal analysis would be more subtle in that case.
While Disney does not hold a copyright on the photo, there may be an infringement on Disney's copyright of Pooh by virtue of copying via the photograph. As virtually all photography is considered to involve at least a modicum of creativity on the part of the photographer, in fact you may have created a derivative work without permission.
Isn't every product copyrighted by someone? What about cars? Or kitchen chairs? My computer case?
No. There are special provisions in US copyright law to exempt utility articles to a wide degree from copyright protection:
Sculptures, paintings, action figures, and (in many cases) toys and models do not have utilitarian aspects and therefore in the United States (where Commons is hosted) such objects are generally considered protected as copyrighted works of art. A toy airplane, for example, is mainly intended to portray the appearance of an airplane in a manner similar to that of a painting of an airplane. On the other hand, ordinary alarm clocks, dinner plates, gaming consoles— as well as actual, full-scale planes— are not generally copyrightable... though any design painted on the dinner plate would likely be subject to copyright protection, as would an alarm clock in the shape of Snoopy the dog.
It is possible for utilitarian objects to have aspects which are copyrightable, but there is no clear line in US law between works which are copyrightable and objects which are not. A whitepaper on copyright and 3D printing mentioned several US court rulings that were each about whether a functional object had artistic elements that were "physically or conceptually" separable from the object's functional aspects and therefore copyrightable. The whitepaper suggested a consideration for determining if specific elements of a utilitarian object are copyrightable under US law: if an object has non-functional elements, then those elements are more likely to be copyrightable if the design of the elements was not influenced by utilitarian pressures. Different countries may have different definitions: German law has a term called Schöpfungshöhe, which is the threshold of originality required for copyright protection. In the vast majority of national jurisdictions, the level of originality required for copyright protection of works of applied arts does not differ from the one for the fine arts. It is higher in Germany, Italy, Japan, Russia, Slovenia, and Switzerland. There is no legal definition for this threshold, so one must use common sense and existing case law.
Instead of copyright protection, utilitarian objects are generally protected by design patents, which, depending on jurisdiction, may limit commercial use of depictions. However, patents and copyright are separate areas of law, and works uploaded to Commons are only required to be free with respect to copyright. Therefore, patents of this kind are not a matter of concern for Commons.
Photos of people in costumes of copyrighted characters may or may not be copyrighted. See Commons:Image casebook#Costumes and cosplay for more information. These should be decided on a case-by-case basis using the separability test.
It is not allowed to copy text from non-free media like copyrighted books, articles or similar works. Information itself, however, is not copyrightable, and you are free to rewrite it in your own words. Quotations are allowed if they are limited in size and mention the source.
In the United States, many maps are in the public domain. The most common cases are:
- The map was created by the US government. The federal government is the greatest source of public domain maps in the United States. Federal agencies are creating maps all the time and works that US government employees create (as part of their jobs) are not protected by copyright.
- The map’s copyright has expired. All maps published in the United States before 1923 are in the public domain because their copyrights have expired.
- The map was published before 1989 without a copyright notice. Copyright notices used to be mandatory. If a work was published without a proper notice, it went into the public domain unless the copyright owner corrected the problem within a specific period of time. A valid copyright notice on a map had to consist of at least these 2 elements: the copyright symbol ©, the word "Copyright," or the abbreviation "Copr." and the name of the copyright owner. (Example: © Lenny Longitude). Maps published from January 1, 1978 through March 1, 1989 also had to include the publication year. (Maps published before 1978 didn't need to include the date).
- The map wasn’t eligible for copyright in the first place. Not all maps get copyright protection in the United States. There are "originality" and "minimal creativity" requirements for copyright in the US. If the components of the map are "entirely obvious" the map will not be copyrightable. For example, an outline map of the state of Texas, or one of the US showing the state boundaries is not copyrightable. (Not creative.) Ditto maps that use standard cartographic conventions, like a survey map. (Not original.)
Even for maps which are copyrighted, not all the contents are subjected to copyright. The problems arise from the tension between the principle that maps are protected and two other basic principles: namely, that copyright does not protect facts and that copyright does not protect systems. Traditional maps are pictorial representations of geographic and demographic facts organized to allow the user to readily understand and easily extract the factual information portrayed. The factual information, such as boundary lines and locations of landmarks, is supposedly unprotected. The organizing principle for presenting the information will often, if not always, be deemed an unprotected system or idea. Thus, many maps will apparently contain only unprotected elements.
The issue was the object of several court cases. The tension among traditional copyright principles as they apply to maps has been heightened by Feist Publications, Inc. v. Rural Telephone Service Company, Inc. The Feist decision follows standard copyright dogma to the conclusion: copyright protects only expression, not facts; the expression protected must be the product of intellectual creativity and not merely labor, time, or money invested; the protected elements of the resulting work are precisely those that reflect this intellectual creativity, and no more. This is the conclusion of a court of law on the issue.
As a result of the court decisions, following parts of a map are in the public domain, and may be used freely:
- Place names. Those aren't copyrightable.
- Colors. For example, the colors representing area features on a topographic map, such as vegetation (green), water (blue), and densely built-up areas (gray or red). Colors aren't copyrightable, either.
- Symbols and map keys Can't be protected by copyright, even if the mapmaker invented truly original ones.
- Geographic or topographic features. Those are facts, and facts aren't copyrightable.
- Elements copied from other maps (say, from a public domain USGS map). Whatever new information the mapmaker added will be protected by copyright (the selection, arrangement of the info), but the elements that were copied (the elements of a USGS map used as a starting point, for example) will stay in the public domain.
However, some of these maps may be protected by copyright. A map isn't copyrightable if the idea it expresses could only be done in one way. The court found that there was сreativity involved in the idea here was to bring together the available information on boundaries, landmarks, and ownership, and to choose locations and an effective pictorial expression of those locations. But the protection that each map receives extends only to its original expression, and neither the facts nor the idea embodied in the maps is protected.
While the above applies to the United States, it is not clear if it is applicable to other countries. In the European Union Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases has been approved. However, neither the directive, nor any of the national laws promulgated after its approval clearly specify that elements represented on maps qualify as databases.
In Germany a verdict of the court in München of November 9, 2005, stated that, according to the German Copyright Law topographic maps are to be considered databases, as defined in art. 87 of the law and the information is protected according to the provisions regarding databases. This also refers to the length of the protection of databases which is significantly shorter than the protection of copyright.
In any case, the copyright for databases according to the Directive is of fifteen years, implying that, regardless of the interpretation, the information on maps which could be interpreted as being database related expires in 15 years after the publication of the map.
I know that I can't upload photos of copyrighted art (like paintings and statues), but what about toys? Toys are not art!
Although the scope of copyright varies between countries, it is a misconception that copyright applies solely to "art". Instead, copyright typically applies to a larger variety of works; to use the United States, where WMF servers are located, as an example: copyright protection is available to “original works of authorship fixed in any tangible medium of expression” (17 U.S.C. § 102). Indeed, toys generally are original (owe their origin to an author), have authors (human creators), and are fixed in a tangible medium (wood, fabric, etc.)
The question, then, is whether toys are to be treated as vehicles and furniture: exempt from copyright protection on the basis of being utilitarian objects. Indeed, some countries, such as Japan, generally consider toys to be utilitarian objects and therefore ineligible for copyright. Other countries, such as the United States, however, do not consider toys to be utilitarian objects. Accordingly, paintings, statues and toys are all copyrightable works whose photographs would require permission of the original creator to be hosted on the Commons. Just as you cannot upload pictures of a sculpture by Picasso, you cannot upload photographs of Mickey Mouse or Pokémon figures.
The legal rationale in the United States has been established in numerous cases. Gay Toys, for example, found "a toy airplane is to be played with and enjoyed, but a painting of an airplane, which is copyrightable, is to be looked at and enjoyed. Other than the portrayal of a real airplane, a toy airplane, like a painting, has no intrinsic utilitarian function." (Gay Toys, Inc. v. Buddy L Corporation, 703 F.2d 970 (6th Cir. 1983)) Additional rulings have found, for example, "it is no longer subject to dispute that statues or models of animals or dolls are entitled to copyright protection" (Blazon, Inc. v. DeLuxe Game Corp., 268 F. Supp. 416 (S.D.N.Y. 1965)) and "There is no question but that stuffed toy animals are entitled to copyright protection." (R. Dakin & Co. v. A & L Novelty Co., Inc., 444 F. Supp. 1080, 1083-84 (E.D.N.Y. 1978))
Similarly, dolls' clothing has been found to be copyrightable in the US on the grounds that it does not have a utilitarian function of providing protection from the elements or preserving modesty in the manner that clothing for humans does (the latter is a "useful article.") Numerous lawsuits have shown that Mickey Mouse or Asterix have to be treated as works of art, which means they are subject to copyright, while a common spoon or a table are not works of art. Artistic elements of these items could be copyrighted, but only if it's separable from the utilitarian elements. Some toys are also too simple to meet the threshold of originality, for example, the Kong dog toy.
When uploading a picture of a toy, you must show that the toy is in the public domain in both the United States and in the source country of the toy. In the United States, copyright is granted for toys even if the toy is ineligible for copyright in the source country.
But Wikimedia Commons isn't commercial! And what about fair use?
Wikimedia Commons is not a commercial project, but the project scope requires that every single file be licensed for possible commercial reuse and be free of third-party copyrights.
Fair use arguments are not allowed on Commons. "Fair use" is a difficult legal exception that exists only for pictures that are used in a certain limited context; it is never applicable to entire databases of copyrighted material.
But how can we illustrate topics like Star Wars or Pokémon without pictures?
Admittedly, it may be difficult or even impossible to illustrate such articles. However, the articles can still be written. Their lack of illustrations will not affect the vitality of Wikimedia's projects, and there are plenty of topics with opportunities to create illustrations which do not violate third-party copyrights. Even your own drawing of Pikachu cannot be published under a free lizense.
Some Wikimedia projects allow non-free works (including derivatives of non-free works) to be uploaded locally under fair use provisions. The situations in which this is permitted are strictly limited. It is vital to consult the policies and guidelines of the project in question before attempting to invoke fair use claims.
What about images of copyrighted characters in public domain works?
Sometimes individual works featuring copyrighted characters (such as Mickey Mouse or Superman) enter the public domain. Although the works themselves are in the public domain, any portions that include the copyrighted characters are still restricted by copyright law. This concept even extends to non-sentient "characters", such as the Batmobile. Derivative representations of characters are protected by copyright law in the United States until the original work that created the character is no longer copyrighted. This protection is separate from trademark protection.
I've never heard about this before! Is this some kind of creative interpretation?
Actually, no. Photographs of, say, modern art statues or paintings cannot be uploaded either, and people accept that. If we accept the legal standard that comic figures and action figures can be considered as art and thus are copyrighted, we are just applying the standard rule here.
How does this policy concern the selection of images that are allowed on Wikimedia Commons?
- Comic figures and action figures: No photographs, drawings, paintings or any other copies/derivative works of these are allowed (as long as the original is not in the public domain). No pictures are allowed of items which are derivatives from copyrighted figures themselves, like dolls, action figures, t-shirts, printed bags, ashtrays etc.
- Paintings with frames: Paintings that are in the public domain are generally allowed (see Commons:Licensing). Frames are 3-dimensional objects, so the photo may be copyrighted. Remember: Always provide the original creator's name, birth and death date and the time of creation, if you can! If you do not know, give as much source information as possible (source link, place of publication etc.). Other volunteers must be able to verify the copyright status. Furthermore, the moral rights of the original creator—which include the right to be named as the author—are perpetual in some countries. In either case you need permission from the author to create a derivative work. Without such permission any art you create based on their work is legally considered an unlicensed copy owned by the original author (taking from another web site is not allowed without their permission).
- Cave paintings: Cave walls are usually not flat, but three-dimensional. The same goes for antique vases and other uneven or rough surfaces. This could mean that photographs of such media can be copyrighted, even if the cave painting is in the public domain. (We are looking for case studies here!) Old frescoes and other paintings on flat surfaces in the public domain should be fine, as long as they are reproduced as two-dimensional artworks.
- Photographs of buildings and artworks in public spaces: Those are derivative works, but they may be OK, if the artwork is permanently installed (which means, it is there to stay, not to be removed after a certain time), and in some countries if you are on public ground while taking the picture. Check Commons:Freedom of panorama if your country has a liberal policy on this exception and learn more about freedom of panorama. (Note that in most countries, freedom of panorama does not cover two-dimensional artworks such as murals.)
- Full freedom of panorama: Algeria, Armenia, Australia, Austria, Bahamas, Bangladesh, Belgium, Belize, Bolivia, Brazil, Burma, Canada, Chile, People's Republic of China, Colombia, Croatia, Cuba, Czech Republic, Dominican Republic, Ecuador, Egypt, Germany, Ghana, Guatemala, Guernsey, Honduras, Hong Kong, Hungary, India, Ireland, Israel, Jamaica, Kenya, Liechtenstein, Macedonia, Malaysia, Mexico, Montenegro, Netherlands, New Zealand, North Korea, Pakistan, Paraguay, Peru, Poland, Portugal, Serbia, Singapore, Slovakia, Spain, Switzerland, Thailand, Tunisia, Turkey, United Kingdom, Venezuela, Vietnam
- Restricted or no freedom of panorama:Albania*, Argentina**, Azerbaijan*, Bahrain, Belarus*, Bosnia and Herzegovina*, Bulgaria**, Cambodia, Costa Rica****, Denmark**, Estonia*, Finland***, France, Georgia*, Iceland*, Iran, Italy, Ivory Coast, Japan***, Kazakhstan*, Kosovo*, Kyrgyzstan*, Latvia*, Lithuania*, Lebanon, Luxembourg, Mali, Moldova*, Mongolia*, Morocco, Namibia, Norway**, Paraguay*, Phillippines, Qatar, Romania*, Russia***, Saudi Arabia, Senegal, Slovenia*, South Africa, South Korea*, Sri Lanka, Sudan, Sweden, Taiwan (Republic Of China) **, United Arab Emirates, Uzbekistan*, Ukraine, USA**, Vatican City
- * These countries limit their freedom of panorama to non-commercial uses of the image only.
- **These countries have freedom of panorama only for buildings, but not for sculptures or other works.
- ***These countries have full freedom of panorama only for buildings, whereas images of sculptures or other works may only be reproduced for non-commercial purposes.
- ****These countries have freedom of panorama only for sculptures, but not for buildings and other architectural works.
- Replicas of artworks: Exact replicas (even poor ones) of public domain works, like tourist souvenirs of the Venus de Milo, cannot attract any new copyright as they do not have the required originality. Hence, photographs of such items can be treated just like photographs of the artwork itself.
- Photographs of three-dimensional objects are always copyrighted, even if the object itself is in the public domain. If you did not take the photograph yourself, you need permission from the owner of the photographic copyright (unless of course the photograph itself is in the public domain).
- Images of characters/objects/scenes in books are subject to any copyright on the book itself. You cannot freely create and distribute a drawing of Albus Dumbledore any more than you could distribute your own Harry Potter movie. In either case you need permission from the author to create a derivative work. Without such permission any art you create based on their work is legally considered an unlicensed copy owned by the original author.
- Fan art : See Commons:Fan art
- Collages are combinations of multiple images arranged into a single image
- Screenshots are a type of derivative work
- Pearlman, Rachel (2012-09-17). IP Frontiers: From planes to dolls: Copyright challenges in the toy industry. NY Daily Record. Retrieved on 2014-06-21.
- Weinberg, Michael (January 2013). What's the Deal with Copyright and 3D Printing? 9. Public Knowledge. Retrieved on 2016-09-22.
- Weinberg, Michael (January 2013). What's the Deal with Copyright and 3D Printing? 13. Public Knowledge. Retrieved on 2016-09-22.
- Summary Report: The Interplay Between Design and Copyright Protection for Industrial Products 4–5. AIPPI.
- VSL0069492. Retrieved on 29 October 2013.
- Commons:Deletion requests/Images of costumes tagged as copyvios by AnimeFan#Comment by Mike Godwin
-  Public Domain Sherpa
- Dennis S. Karjala - Copyright in electronic maps - Jurimetrics Vol. 35 (1995) pp.305-415
- Mason v Montgomery Data et al 1992
-  Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz)
-  Landgericht München I - Datenbankschutz für topografische Landkarten
-  Public Domain Sherpa
- HASBRO BRADLEY, INC. v. SPARKLE TOYS, INC., 780 F.2d 189 (2nd Cir. 1985)
- Siegel v. Warner Bros (2009)
- Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co. (1995)
- DC Comics v. Mark Towle (2013)
- Warner Bros. v. AVELA (2011)
- Case studies
- http://www.ivanhoffman.com/beanie.html (Citing a court case in which photographs of Beanie Baby dolls are treated as derivative works)
- http://www.benedict.com/visual/batman/batman (Citing a court case in which Warner Bros was accused of copyright infringement for filming a statue inside a building)
- http://www.stmaryslawjournal.org/pdfs/gorman.pdf (Eric D. Gorman: How to determine whether appropriation art is transformative “fair use” or morely an unauthorized derivative?)
- Other useful sites
- Derivative Works :: Topics :: Lumen (formerly Chilling Effects)
- L.H.O.O.Q.--Internet-Related Derivative Works
- US Copyright Office Circular 14 - Copyright in Derivative Works and Compilations
- Compendium II: Copyright Office Practices - Chapter 500 (What's copyrightable and what's not in the area of visual arts)
- Australian Copyright Council's Online Information Centre has many downloadable guides covering aspects of copyright.