I am excited about returning to our conversation about intellectual property. This week, let’s talk about derivative works. I am sure you have heard of derivative works and know, generally, that it is a work based on another work. The Avengers movie is a derivative work of the original comic books because the work is based on another work. Even though the movie is its own original copyrightable work, it is considered a derivative work of the original comic books. So, how does that work when you are creating a new product (think software) that solves some problems similar to another product that already exists. You know, creating competition for the original product. Is that a derivative work?
To get started, let’s start with the legal definition of a derivative work:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
So, the question is: Whether a competitive product that solves similar problems is a derivative work of the first product to the market? For the sake of competition and the marketplace, the answer must be a resounding “NO”.
The author of an original work is the only one who has the legal right to create a derivative work. So, if a competitive product was a derivative work, the first to market would be able to stop (or require licensing fees) from anyone who came later. That would be bad for business. It would be bad for the economy.
The primary indication of whether a new work is a derivative work of another is whether the actual work (e.g., source code, words, or artwork) was used, modified, translated or altered in any way to create the new product. So, a good indicator of whether you made an original work when you created your copyrightable work is whether you started from some other original work and made modifications, or if you started from scratch.
The lesson here is: if you decide to create a new product that you believes will solve a problem in the market, start at the drawing board. Do not start from other original products and make changes. Create something new. If you create something new, even if it has some similarities, you will be okay when it comes to avoiding a claim for a derivative works.
As with so many other things we talk about here, you want to document your process of creating something new. After all, if you can’t show that you started from scratch, they may be able to make it look like you didn’t.
For this week, we will leave it at that. Next week, we will talk a bit more about how to avoid creating an “infringing work”. This can happen even if you do start from scratch if you have access to the original work, but we will talk about ways to avoid it.
I will talk to you next week, unless you talk to me first 😉