According to copyright laws, a derivative work is an additional or second artistic or literary creation which often comprises most of the basic copyrighted components of the original work. For example, the original composer must grant copyrights to the secondary work for it to be legally dubbed a ‘derivative work.’
Commonly referred to as ‘new version(s),’ derivative works are not restricted to the musical realm. They can include art reproductions, condensations, dramatizations, and fictionalizations, as well as musical arrangements and translations.
When a musician creates a cover of an original song, this would be considered a derivative work. Another example would be when songwriters create an entirely new work that includes some material previously published. In this case, copyright law considers this too, as a derivative work.
In the world of commercial music for television, radio, films and other popular entertainment, an original work is often re-worked to sound slightly different, yet very recognizable as the original song. At other times, a commercial song may sound vaguely reminiscent of the original work, but is technically an entirely different melody and lyrics altogether. This is where the legal line gets fuzzy, and the definition of derivative work becomes harder to determine.
Original creators (authors) of copyrighted material may prepare or authorize another individual or individuals to create a newer version of his or her work. When permission is granted by the original creator, the original author still retains copyrights of his original works; the secondary author will gain copyright interests from the derivative work only.
The exception to the rule of derivative works is the doctrine of ‘de minimis,’ which explains that copyrighted material, may be used in a derivative work without the permission of the original owner if only a small fraction of the original work is actually used. This is sometimes referred to as 'sampling', a common practice in today's hip-hop and rap music scene.
If you would like to share your thoughts on derivative work or other music-related topics, feel free to do so at Media Positive Radio today.
Return to the Music Industry Directory