same, but different: derivative works

In the context of 2D visual art, a derivative work is an image that is “based on” or “derived from” another image. Usually we think of this as meaning the second work has some kind of obvious change from the first, but this isn’t required. Copyright law considers “art reproductions” to be derivative works. When an artist scans her painting and creates giclée prints, the reproductions look pretty much like the original, but they’re still derivatives.


Let’s talk, though, about the kind of derivative works you may be more familiar with, when the second work is noticeably changed from the first work. You may remember one of the principles of copyright we discussed earlier: only the original artist of a particular work has the right to make new artworks based upon it (aka to make derivative works). There’s a common misconception that if you change some percentage of another artist’s original work, you’re not invading that artist’s right to reproduce the original or to make derivatives of it. But whenever an artist makes an original work, its content is protectible even when reconstituted in another work that adds or subtracts elements.

So if you’re inspired by another artist’s work, how different does your work need to be? Well, as with many things in the law, it’s complicated, but a good rule of thumb is that if you can see the first work’s content in the second, you’re on shaky ground. For this reason alone, it’s advisable to establish clear boundaries for yourself between the time and space (mentally and physically speaking) when you’re gathering and studying your sources of inspiration, and the time and space when you’re creating your own work. This practice will help you stay true to your own particular expression.

Here’s another angle on derivative works that may be of interest to those of you who license your art. You may be accustomed to your licensee’s in-house design team making adjustments to your supplied artwork (e.g. in order to fit a particular layout, or even to create coordinating elements such as repeat patterns). And, naturally—wanting to be a good licensing partner—you may have consented in advance (in your license agreement) to the creation of such derivatives. So long as you have an opportunity to approve of these changes, we think this is usually a win for everyone involved. The in-house creative team knows how to turn licensed art into a marketable product design, so it’s great to be able to trust the pros with this important job. Remember, though, that the copyright in those derivatives is yours, unless you’ve explicitly released that right in your license agreement. You may be able to sell or even license (for a non-competing use) these derivatives, so don’t be shy about asking your licensee for those files. In fact, we highly recommend that your license agreement contains language explicitly stating that you retain ownership of all derivative works.

We hope you're enjoying our copyright primer posts. Are you feeling more confident in your understanding of copyright law and how it relates to your art business? What questions do you have? We're here to help, so leave a comment below, or shoot us an email if you're feeling shy!

Please remember: The information provided on this blog and throughout our website is intended for general educational purposes only. While some information on this site relates to the law as a topic, it's not intended as a substitute for legal advice. Only a lawyer, selected by you and fully informed of the facts relating to your particular situation, can render legal advice.