Protection for Your Derivative Works
Posted by Carolyn Wright
Here's the issue: you photograph a car for the manufacturer in 2004 and
register the photo with U.S. Copyright Office. In 2005, the car maker
produces the same car except with a different style of wheels. The client
asks you to shoot only the new wheels and add them to the original
photo using Photoshop. The new photo then will be distributed. Do you
need to register the new photograph to obtain full statutory copyright
protection? You do if it would qualify as a derivative work.
Here's the issue: you photograph a car for the manufacturer in 2004 and
register the photo with U.S. Copyright Office. In 2005, the car maker
produces the same car except with a different style of wheels. The client
asks you to shoot only the new wheels and add them to the original
photo using Photoshop. The new photo then will be distributed. Do you
need to register the new photograph to obtain full statutory copyright
protection? You do if it would qualify as a derivative work. As the owner of a copyright, you have complete and exclusive control to
do a variety of things to your photograph, including the right to prepare
derivative works based on the original image. But when you alter a
work, it's a judgment call as to whether it constitutes a derivative work or
is only a minor variation of the original work. A derivative work is one that is based on one or more earlier works.
Derivative works include editorial revisions, annotations or other
modifications. A derivative work must be different enough from the
original to be regarded a new work – in other words, it must contain
some substantial, not merely trivial, originality. Making minor changes or
additions of little substance to a preexisting work will not make it a new
version for copyright purposes. One of the tests to decide whether the new work is a derivative work is
whether the new material is original and copyrightable in itself. Note
that, for reasons not covered here, the standard of originality is higher
for derivative works than it is for those not based on preexisting works.
If your photo meets the definition of a derivative work, it must be
registered for full statutory protection. If the photo only is slightly
modified and does not qualify as a derivative work, then the original
registration covers the work. In the case cited above, since the photograph of the wheels may be
considered original and copyrightable itself, adding it to the original
photograph probably makes it a new work. For the most protection,
registering the new work is the safest bet. Take my advice; get professional help. PhotoAttorney Copyright 2005 Carolyn E. Wright All Rights Reserved --- ABOUT THE AUTHOR --- Carolyn E. Wright, Esq., has a unique legal practice aimed squarely at
the needs of photographers. A pro photographer herself, Carolyn has
the credentials and the experience to protect photographers. She's
represented clients in multimillion dollar litigations, but also has the
desire to help new photographers just starting their careers. Carolyn
graduated from Emory University School of Law with a Juris Doctor, and
from Tennessee Tech Univ. with a Masters of Business Administration
degree and a Bachelor of Science degree in music. She wrote the book on photography law. “88 Secrets to the Law for
Photographers," by Carolyn and well-known professional photographer,
Scott Bourne, is scheduled for fall 2005 release by Olympic Mountain
School Press. Carolyn also is a columnist for PhotoFocus Magazine. Carolyn specializes in wildlife photography and her legal website is
http://www.photoattorney.com
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