As writers, we often find ourselves standing on the shoulders of giants, building on the work that’s come before us. Sometimes we do this more intentionally than others: for example when we re-tell a fairytale or folk story, or when we write fanfiction based on someone else’s work. American copyright law is a little more confusing than copyright law in some other countries in
terms of who owns what copyright in a work that builds consciously on someone else’s work. This is because our copyright law has a unique concept of a derivative work, as well as incorporating a concept of transformativeness into the fair use defense.
What the heck does that all mean?
Well, basically the Copyright Act gives the original author of a work (unless it’s a work-for-hire) ownership of the copyright in the work as soon as it’s written down, typed out, entered into a word processing program, etc. As soon as you make it, you own copyright in it.
Once you own copyright, the copyright law gives you what are called “exclusive rights” to do certain things with the work: including copying, distributing, displaying the work, etc. This should all be pretty familiar to most readers. If you hold copyright in your work, you get to say who’s allowed to publish and distribute it as a result of these exclusive rights.
Another exclusive right held by a copyright holder is the derivative works right. This is the right to make new works based on the original work: including translating the work into other languages, other formats (e.g. a short story into a screenplay), or creating sequels, prequels, and retellings of the work. The derivative works right gives the original copyright holder the exclusive right to control these kinds of uses. In other words, theoretically, I can’t write a prequel to your copyrighted story without your permission.
A lot of derivative works are made with the permission of the original copyright owner, and often on payment of a flat fee and/or royalties. However, some derivative works are made without permission. How does this happen, legally speaking?
The first point to note is that if you make a derivative work from a work in the public domain, e.g. a retelling of a fairytale that’s out of copyright or of a Shakespearean play or Greek tragedy that predates copyright, you’re fine. Derivative works of public domain materials are no big deal, and don’t require permission (whose permission could you get anyway to retell a Greek tragedy?)
However, derivative works from copyrighted material may be made, and sometimes even commercially distributed, without the permission of the copyright owner if they are fair uses of the original work. I’ve talked about fair use elsewhere so I won’t go into it in detail here, but basically in the United States, the fair use defense, as set out in the Copyright Act, requires courts to examine four “fair use factors” to decide, on balance, if a fair use has been made of the original work. The factors revolve around: (1) the nature and character of the use, including whether it’s commercial; (2) the nature of the original work; (3) the amount of the portion taken, qualitatively and quantitatively; and, (4) the effect of the use on the market for, or value of, the original work
An interesting wrinkle in this four factor test is that courts have, in recent decades, included in the inquiry into the first factor (nature and character of the use) whether the use is transformative. The more transformative the use, the more likely it is to be a fair use. Transformative in this context means creating new insights and meanings into the work. In this sense, a feminist retelling of, say Death of a Salesman may be more likely to be regarded as transformative than a translation of the play into another language. Of course, transformative use isn’t the be-all and end-all of fair use. Courts will consider the other factors too including whether the use is commercial, and whether it negatively impacts the market for the original work.
The point here is that under American copyright law, the exclusive right to make derivative works often comes into conflict with the fair use defense’s leeway for fair use in transformative works. While copyright holders often win lawsuits even where repurposings of their work are highly transformative, they don’t always win. A March 2019 case held that a mashup of Dr. Seuss’s Oh, the Places You’ll Go! with characters and plotlines from the original 1960s Star Trek TV series was a fair use. This was clearly a form of parody, retelling the original Dr. Seuss book with a Star Trek twist.
No one can ever say with any certainty, at least before a case gets into court, whether any particular retelling of an existing work will be a fair use, and if you’re working with a traditional publisher (e.g., magazine or book publisher) they may ask you to get permission from the original copyright holder for avoidance of doubt. However, it is worth knowing that sometimes your retelling is a fair use. We all stand on the shoulders of the giants who have come before us. That’s how art and creativity works, and sometimes you should be allowed to repurpose existing work without specific permission.
Disclaimer: Nothing in this blog post is intended as formal legal advice and anyone requiring assistance on a specific matter should contact an attorney.