The Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs

Abstract

The derivative right is at the very core of copyright theory. What can and cannot be reused to create a new work impacts freedom of expression but also impacts the value of the markets for works and their various “derivatives.” The derivative right includes forms of derivation and adaptation, such as making a movie from a novel or translating a book. It also covers what this Article refers to as penumbral derivatives, which the US Copyright Act captures using the phrase “based upon” with respect to preexisting works. This leads to indeterminacy about the scope of the derivative right, which may have chilling effects on nonprofessional Internet users who may not have the time, desire, or resources to consider or negotiate copyright rights. This Article acknowledges that derivation often includes reproduction of all or part of a preexisting work. How is the derivative right different from the right of reproduction? That is the main question tackled in this Article. Using the Berne Convention negotiating history, as well as US, British, French, and German jurisprudence, this Article suggests that the derivative right has a different normative target than the right of reproduction, in spite of their considerable overlap. The Article enunciates six mobilizing principles, which it then proceeds to demonstrate. The Article also argues and demonstrates in particular that there is a hard line that divides fundamental changes that are noninfringing under a proper derivative right analysis (in most cases because the idea, not the expression, is appropriated), and those that are noninfringing as transformative fair uses. Finally, the Article strikes a note of caution specific to appropriation art.