Play the Web - Latest Comments in Reusing Content: Derivative Work vs Modified Work

Re: Reusing Content: Derivative Work vs Modified Work

Thomas Frank — Fri, 18 Feb 2011 11:23:28 -0000

Thanks for this perspective. I've been really careful about this, but sometimes there are just pictures you need to crop a bit!

Re: Reusing Content: Derivative Work vs Modified Work

Mike Reality — Wed, 12 Jan 2011 15:47:33 -0000

As a patent attorney (with a designer for a wife, thus my forrest gumping my way along this page), I can tell you this is a great series of questions you have posed. However, it is also very easy to answer:

Whenever you take an existing image and modify it to create a different image, you are making a "derivative work." For example, you might composite several images in the darkroom, or you might use Photoshop’s tools to distort a digital photo. Another kind of derivative is the compilation, such as a coffee-table book.

In law, it does not matter whether the change is great or small, or whether the result is recognizably like the original; what matters is whether your creative process began with an existing image.

If your changes differ in some significant parts, the new work is yours and allowed to be copyrighted; however, the original pieces that you have used are still also copyrighted and you need permission.

Thus, if you are building on the work of others, you must obtain permission (unless the original is in the public domain) and you must respect any limitations that the respective owners of the originals may impose.

Moreover, there are some circumstances where you don’t need the blessing of the original copyright holder, such as for a parody or other fair use. However, you can expect some hostility if you take this route, and you should probably consult a lawyer early on.

The law holds that there can be original authorship if the derivative contains a significant amount of new material or is sufficiently different that it can be regarded as a new work. For instance, in a coffee-table book, the selection and arrangement of the photos is considered “new material” that is worthy of copyright. If there is a new copyright, it covers only the aspects that are original. Thus, the book’s copyright doesn’t affect the copyrights of the photos. In other words, the original work is still also protected even though modified.

In short, even though your derivative work is entitled to its own copyright, you must reveal the work’s ancestry when you register.

Re: Reusing Content: Derivative Work vs Modified Work

website content creation — Wed, 26 Aug 2009 16:45:54 -0000

There is no clear border between derivative work and modified work, this is also in writing or any form of website content. There is no clear border but there is a border there, I think we should let the common sense and the circumstances decide that.

Re: Reusing Content: Derivative Work vs Modified Work

Kelli — Thu, 21 Aug 2008 19:02:05 -0000

Why make a distinction between modified and derivative work? Why not call it all modified or all derivative work?

Re: Reusing Content: Derivative Work vs Modified Work

Ddonat — Wed, 20 Aug 2008 15:12:13 -0000

Great insights, Blaise. Thanks.

From the link on Wikipedia, the way I read Transformative use would imply all of these images are transformative use. I too am no lawyer.

However, I am not trying to make a legal distinction. I'm more interested in content mark-up/metadata for content that is being reused. I think it is valuable to KNOW if a work I'm looking at is a derivative of another work. And although it may not be clear in my post, I'm trying to figure out:
1. If there are any hard rules for defining a work "Derivative". If so a system can define and then auto generate the metadata Work=Deriviative versus Work=Original. It seems to me that Derivative is likely a user generated field.

2. But there are easily defined rules for Modified work. However, is that useful metadata? Work=modified?

Re: Reusing Content: Derivative Work vs Modified Work

Ddonat — Wed, 20 Aug 2008 14:58:45 -0000

Hey Bryan,

Well, I actually agree. I am not advocating technology controls.

I am wondering if it would be useful for a technology to understand "Yes this is a Derivative work", but it seems to me that "derivative or not" must be a human input piece of metadata. Technology can't define a Derivative work.

However technology can determine if it is modified, and as such "Yes this is a modified work" could be a system generated piece of metadata.

Is it worth it to a content creator to know if content is modified or not?

Re: Reusing Content: Derivative Work vs Modified Work

Blaise Alleyne — Wed, 20 Aug 2008 14:28:57 -0000

In other words, I think you're inventing the distinction between modified and derivative works. That's not a legal distinction, to the best of my knowledge.

There is, however (at least in the US), a distinction between non-transformative and transformative derivative works.

Re: Reusing Content: Derivative Work vs Modified Work

Blaise Alleyne — Wed, 20 Aug 2008 14:27:25 -0000

I'm no lawyer,but I've taken an interest in this sort of thing.

All of those cases are clearly derivative works, except maybe image 3. The Creative Commons tends not to view a picture in a page of text as a derivative work, where as the Free Software Foundation (with the GNU Free Documentation License) believes that would constitute a derivative work. Which of them is right has yet to be seen, and would depend on the theories being tested in court. Or so I've been told.

I don't see how there's any question as to whether a cropped image is legally a derivative work. I think the real question you're asking is about transformative use. I think there's a strong argument that image 1 is transformative, whereas it would be harder to say the same about image 4. Image 3, if considered a derivative of the original, is also clearly transformative.

Re: Reusing Content: Derivative Work vs Modified Work

Bryan Rieger — Wed, 20 Aug 2008 14:26:26 -0000

Interesting question - but I'm not so sure this is a technology problem, but rather a cultural and/or legal one. IMO a technology solution to this would likely result in DRM being required on all hardware and software for this to work - which REALLY scares me.