Digital Law Online: Compilations, Collections, And Derivative Works

Copyright can protect not only an original work but also works that are collections of other works, or works based on preexisting works. But in those cases, the scope of the new copyright is limited to the parts of the collection or derivative work that are original. Before looking at those special provisions, it is necessary to understand more terms defined in Section 101:

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

A “derivative work” is a work based upon one or more preexisting 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”. {FN30: 17 U.S.C. §101}

The drafters of the Copyright Act explained the differences between a compilation and a derivative work this way:

Between them the terms “compilations” and “derivative works” which are defined in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. There is necessarily some overlapping between the two, but they basically represent different concepts. A “compilation” results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. A “derivative work,” on the other hand, requires a process of recasting, transforming, or adapting “one or more preexisting works”; the “preexisting work” must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted. {FN31: H.R. Rep. No. 94-1476 at 57}

II.B.1. Reproductions or Derivative Works?

There is also a gray area between reproducing a work and creating a derivative work. One does not need to produce a perfect copy in order to infringe a copyright. Otherwise, a copier could simply make a minor change (an unimportant word in a book, or a pixel or two in a computer image) and avoid infringing. The test for infringement established by court cases is whether the copy is “substantially similar” to the original work. There is no hard-and-fast rule determining when something is a substantially similar copy, and when it is a derivative work, since both will incorporate the original work in some way and also have changed material. (There are few hard-and-fast rules in intellectual property law.) But the touchstone for a derivative work is the “recasting, transforming, or adapting” of the original work, often to a new form.

II.B.2. Special Provisions

The special provisions for compilations and derivative works are contained in Section 103:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. {FN32: 17 U.S.C. §103}

In the legislative history, the drafters explained those provisions:

The most important point here is one that is commonly misunderstood today: copyright in a “new version” covers only the material added by the later author, and has no effect one way or the other on the copyright or public domain status of the preexisting material. . . .

The second part of the sentence that makes up section 103(a) deals with the status of a compilation or derivative work unlawfully employing preexisting copyrighted material. In providing that protection does not extend to “any part of the work in which such material has been used unlawfully,” the bill prevents an infringer from benefiting, through copyright protection, from committing an unlawful act, but preserves protection for those parts of the work that do not employ the preexisting work. Thus, an unauthorized translation of a novel could not be copyrighted at all, but the owner of copyright in an anthology of poetry could sue someone who infringed the whole anthology, even though the infringer proves that publication of one of the poems was unauthorized. Under this provision, copyright could be obtained as long as the use of the preexisting work was not “unlawful,” even though the consent of the copyright owner had not been obtained. For instance, the unauthorized reproduction of a work might be “lawful” under the doctrine of fair use or an applicable foreign law, and if so the work incorporating it could be copyrighted. {FN33: H.R. Rep. No. 94-1476 at 57-58}

Many works are protected by a number of copyrights. For example, when a movie is made from a best-selling novel, the material that comes from that novel is protected by the novel’s original copyright. The screenplay is a derivative work of the novel and has its own copyright covering its original aspects. (For example, added dialogue or the instructions for the staging of a scene.) Both are literary works. The actual movie, an audiovisual work, has its own copyright covering the things that are original to the movie and not in the screenplay, such as the director’s particular arrangement for a shot. The musical score of the movie also has its own copyright. In each case, the copyright covers only what is original to that particular work.

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