The Quest for a Sound Conception of Copyright's Derivative Work Right

Abstract

The Copyright Act of 1976 confers on authors an exclusive right to prepare derivative works. It defines this term as “a work based upon one or more preexisting works,” giving nine examples to illustrate the concept and ending with “or any other form in which a work may be recast, transformed, or adapted.” This right has been unproblematic in cases involving the nine exemplary derivatives and close analogues, but highly problematic in some cases construing the last clause. This Article shows that the exclusive right to prepare derivative works is narrower in scope than critics have feared. The legislative history reveals that the definition was intended to clarify the scope of this right, which was accomplished through the nine examples, which have key characteristics in common, illustrating the types of derivatives meant to be covered by this right. To be consistent with the text of the statute, the legislative history, and the constitutional purpose of copyright, the derivative work should only be infringed under the last clause of the definition only if the plaintiff’s claim involves one of the exemplary derivatives or close analogues. The Article also considers numerous provisions and doctrines of U.S. copyright law that limit the reach of the derivative work right, thereby promoting the constitutional purpose of copyright and policies favoring ongoing innovation and competition, free expression interests of subsequent authors, and privacy and autonomy interests of users. The Article considers a handful of derivative use cases that have given overbroad interpretations to the derivative work right and explains why these decisions are unsound.