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Would this be considered a derivative work?
I was recently reading a debate about whether or not it was a violation of copyright to reference a three dimensional sculpture and make a drawing based on it.
To keep this simple, let's assume the creator of the drawing isn't making a profit, and that the reference was very literal and the sculpture they drew from would be recognizable by someone who was familiar with it. Let's also assume the sculpture is a recent work but not terribly famous.
As far as I can tell, this is a derivative work and there is nothing legally wrong with the situation. However many don't agree and say that it does violate copyright.
I can see how this is morally questionable.. But legally?
Can anyone explain in detail? Sources, please! I don't want opinions, just facts. Best answer goes to whoever can prove it. I'm an innocent bystander in this debate and just want to know who is right, no one seems to be citing any sources for their views and I can't find anything about this in particular.
1 Answer
- ron_mexicoLv 71 decade agoFavorite Answer
First of all, whether or not the creater of a copyrighted work is making a profit is irrelevant. For example, if I create a song and post it on Youtube for free, that does not mean that Beyonce can copy my song and record it, even though I am not making a profit.
Second of all, whether or not the copyrighted work is "terribly famous" is irrelevant. For example, even if my song is not known, Beyonce cannot copy it.
Regarding the rest of your question, see the information below from the Chilling Effects website:
--Congress revised the federal copyright statute in 1976 to provide copyright owners with statutory protection for derivative works. A derivative work can take the form of "any . . . work [that] may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represents an original work of authorship, is a 'derivative work.'" (emphasis added) 17 U.S.C. § 101 (1994).
In short, a derivative work is a whole work based on one or more other whole works.--
Clearly, a drawing based on a sculpture falls under the legal definition of a derivative work. I have no idea why there would be much of a "debate." The issue seems highly in favor of the copyright holder.
Source(s): I'm an attorney.