a pictorial, graphic or sculptural work; a motion picture or audiovisual work; a sound recording; and/or an architectural work. For example, a ballet based on an epic poem would be considered a derivative work, because a poem is a type of literary work. By contrast, a photograph of a lake or a sculpture of a mountain would not be considered a derivative work, because lakes and mountains do not constitute copyrightable subject matter.
The fact that the author incorporated uncopyrightable elements of a preexisting work into his or her work does not necessarily mean that the author’s expression qualifies as a derivative work. For example, merely incorporating a word, letter, number, or common geometric shape from one or more preexisting works does not constitute derivative authorship. Instead, the author of the derivative work must recast, transform, or adapt some of the copyrightable portions of a preexisting work. See H.R. Rep. No. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670 (explaining that a derivative work “requires a process of recasting, transforming, or adapting ‘one or more preexisting works’” and that “the ‘preexisting work’ must come within the general subject matter of copyright” whereas “[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.”).
311.2 The Originality Requirement for Derivative Works
Creating a derivative work requires “a process of recasting, transforming, or adapting ‘one or more preexisting works.’” H.R. Rep. No. 94-1476 at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670. Thus, derivative works contain two distinct forms of authorship:
- The authorship in the preexisting work(s) that has been recast, transformed, or adapted within the derivative work; and
- The new authorship involved in recasting, transforming, or adapting those preexisting work(s).
The new authorship that the author contributed to the derivative work may be registered, provided that it contains a sufficient amount of original expression, meaning that the derivative work must be independently created and it must possess more than a modicum of creativity. See Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir. 1994).
As discussed in Section 308.1, independent creation means that the author(s) named in the application created the new or revised material that the applicant intends to register, “and this in turn means that the work must not consist of actual copying.” L. Batlin & Son, 536 F.2d at 490 (citation omitted).
The amount of creativity required for a derivative work is the same as that required for a copyright in any other work. “All that is needed to satisfy both the Constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’” Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102–03 (2d Cir. 1951) (citing Chamberlin v. Uris Sales Corp., 150 F.2d 512, 513 (2d. Cir.
