The right to make a derivative work is one of the most valuable of the exclusive rights granted to the owner of a copyright. In the United States, reformulating preexisting copyright protected works for a new purpose, like a movie version of a book, creates a derivative work of the original work.
The Swedish pop band ABBA may have hung up their dancing shoes in 1982, but their music has enjoyed many twirls around the dance floor in the following years. Most significantly, their songs are the basis for the inaugural “jukebox” musical Mamma Mia. Not only are their songs the soundtrack, two of the members of the band transformed the songs to serve as both the score and as the plot device. The musical has introduced ABBA to countless new fans who span generations.
Derivative works come in all shapes and sizes, and can be many degrees removed from an original work. The television show Sex and the City is a derivative work of authorCandac e Bushnell’s columns published under the same name in a New York newspaper. Ms. Bushnell assigned Darren Star all of her rights to the stories she wrote, including the right to make derivative works. The most recent derivative work from the original stories is the blockbuster movie based on the television show, which was based on the columns. So the movie is a derivative work of a television show which is a derivative work of a collection of columns.
Similarly many of the great summer blockbusters are derivative works of comic books. The Incredible Hulk is doing incredible business at the box office this summer. Bruce Banner and his alter ego the Hulk have had many lives, starting out as a two-dimensional character in Marvel comic books in the early 1960’s, landing on television as both an animated and live action series, and two feature films. Marvel Comics has shepherded the character through each version contributing new stories to our popular culture along the way.
Yet, many people, including Larry Lessig, point to the ease in which individuals can reformulate content in the Digital Age as a justification for diminishing the extent of the exclusive rights of copyright, including the derivative right. In the documentary Good Copy, Bad Copy, Lessig claims that as an author he knows what it is like to have creative works reformulated because students do all kinds of crazy things with books in class. Students writing, or interpreting a book, is significantly different than Girl Talk or Danger Mouse significantly sampling and reworking an underlying protected work.
Way back in 2004, the deejay Danger Mouse combined the Beatle’s White album with Jay Z’ Black album to create the Grey album. As a reformulation of the underlying copyrights the Grey album was a derivative work of the other album. Danger Mouse should have obtained permission from the rights holders of the two underlying records. However, he did not.
Danger Mouse pressed at least 1,000 copies of the album with the intent of making money to, at the least, recoup his expenses. The album leaked onto the Internet and became a hit, some people liked it while others were just curious. The rightsholders to the underlying works were not amused and there was some legal action. In keeping with the anarchist nature of the Internet, netizens made the album available on their websites for free. In the end, neither Jay Z nor the Beatles were compensated for the use of the music which propelled Danger Mouse to fame.
Of course, Siva Vaidhyanathan argues that the Danger Mouse Grey album episode is a great example of how restrictive copyright law can be. In Good Copy, Bad Copy, he argues that Danger Mouse was within his rights to create the album which he only distributed to friends and for which no money had been made. However, Danger Mouse has acknowledged that his use of the Beatles and Jay-Z materials might not have been legal.
As the Internet challenges the foundation of copyright, preserving the exclusive right to make a derivative work is essential for creators, heirs and other rightsholders. Mamma Mia is a great example of the power of the derivative right, ABBA could not have imagined their songs would become the basis for a hit musical well after the band had hung up their dancing shoes.
July 2, 2008 at 3:33 pm |
I guess rights holders have to occasionally slap down “gray” activity like this here and there. It’s always a risk, though. In this case, they probably made DJDM a wheelbarrow of cash. He would never make any money off this album, and if he does now, he will probably have to sign it back over to Jay-Z and the Beatles, but I think it clear who will benefit most here.
July 7, 2008 at 3:50 pm |
[...] derivative copy can’t exist without an original. There is a long history of derivative licensing which is seen in today’s culture everywhere you look. The Internet obviously hasn’t [...]