17 U.S.C. § 101

Section 101's derivative-work definition covers a virtually identical re-expression of a program's menu structure in a different representational language, analogous to a translation.

Lotus Development Corp. v. Borland International, Inc. · filed 1993-08-19

Here, Borland created a virtually identical copy of the Lotus menu- structure, but translated (nearly verbatim) the menu structure into a different language for representing menu structures.

Section 101 treats a musical arrangement as a derivative work only when the modification is an original work of authorship; routine musical variations are insufficient.

Woods v. Bourne Co. · filed 1994-01-10

I reject Bourne’s definition of “derivative work” as being anything beyond the lead sheet. Those words, “musical arrangement”, cannot be read in a vacuum. They must be read together with the second sentence of § 101 which requires the “modification” to the composition to be an original work of authorship, and together with the entitlement to copyright which is set forth in § 103.

Section 101 covers works recast, transformed, or adapted from preexisting works, but insubstantial, mechanically copied changes lacking the claimant’s original product do not qualify as a derivative work.

Fred Riley Home Building Corp. v. Cosgrove · filed 1994-08-19

In order to be considered a derivative work under 17 U.S.C. § 103 the work must be recast, transformed or adapted from a pre-existing work. 17 U.S.C. § 101. To be copyrightable as a derivative work, it must be substantially different from the pre-existing work. The original aspects of the derivative work must be more than trivial. ... Further, Century House is not a derivative work of Summit House because it is not substantially different from Summit House. Any changes from the Summit House plan to the Century House were trivial, were created by mechanical copying and did not represent the original product of Riley.

Section 101 defines a derivative work as one based on one or more preexisting works, and the court applied that definition to the sales brochure.

Harris Custom Builders, Inc. v. Hoffmeyer · filed 1995-02-02

The sales brochure is considered to be a derivative work, that is, a work based upon one or more preexisting works. 17 U.S.C. § 101. The law is clear that the publication of a derivative work does not affect the validity of a copyright in the preexisting work on which the derivative work is based, despite the incorporation of the underlying work into the derivative work.

Section 101 treats a revision based on a preexisting work as a derivative work when it includes original editorial revisions, annotations, elaborations, or other modifications.

Dun & Bradstreet Corp. v. Harpercollins Publishers, Inc. · filed 1995-01-10

Section 101 of the Copyright Act defines a derivative work as one based on a preexisting work in which the preexisting work “may be recast, transformed or adapted” and includes a work “consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship_” 17 U.S.C. § 101.

Section 101 treats changing lyrics or adapting a composition into another language as preparing a derivative work, which requires the copyright owner's authority.

Peer International Corp. v. Luna Records, Inc. · filed 1995-04-28

Changing the lyrics of a composition or adapting a composition for a foreign language creates a derivative work, which cannot be prepared without the copyright owner’s specific authority.

Section 101 requires a derivative work, including a musical arrangement, to contain more than a trivial variation and independently copyrightable original authorship.

Woods v. Bourne Co. · filed 1995-07-25

“there must be at least some substantial variation [from the underlying work], not merely a trivial variation.”

Section 101 requires a derivative work to recast, transform, or adapt a preexisting work with sufficient originality; merely mounting an unchanged work on a different background or display medium does not qualify.

Lee v. Deck the Walls, Inc. · filed 1996-05-01

The mundane act of placing notecards onto a ceramic tile falls into the narrow category of works in which no creative spark exists. Thus, the ceramic tiles are not a new and different original work, but the same exact work placed onto a different background. ART did not display any creativity in gluing Annie Lee’s work onto the separate surface. ART did not reproduce the images, did not enlarge or diminish the size of the images, and did not make any alteration to the drawings themselves. To the contrary, ART simply glued onto a ceramic tile the exact same notecards DTW purchased from Annie Lee, and placed a clear epoxy resin coating over the entire tile. Since the notecard is in the same “form” as Annie Lee’s original work, it necessarily cannot be in a “form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. No intellectual effort or creativity was necessary to transfer the notecard to the tile. It does not meet the definition of a “derivative work.”

Section 101 treats a work as derivative only when it substantially copies protected expression from a preexisting work; borrowing only the prior work’s ideas is insufficient.

Lenert v. Duck Head Apparel Co · filed 1996-09-26

A “derivative work” is defined by the Copyright Act as “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.” 17 U.S.C. § 101. To constitute a derivative work, the work must be substantially copied from a pre-existing work. ... Mere borrowing of the ideas of a prior work, as opposed to the expression of those ideas, does not make a particular work a derivative.

Section 101 treats a work based on one or more preexisting works, with newly added original material, as a derivative work.

In Re Independent Serv. Organ. Antitrust Lit. · filed 1997-03-21

The copyright registrations at issue pertain to "derivative works." A "derivative work" is defined as "a work based upon one or more preexisting works" to which original materials are newly added. 17 U.S.C. § 101.

Section 101 defines a derivative work as a work based on one or more preexisting works to which original material is added.

CSU Holdings, Inc. v. Xerox Corp. · filed 1997-03-21

The copyright registrations at issue pertain to “derivative works.” A “derivative work” is defined as “a work based upon one or more preexisting works” to which original materials are newly added. 17 U.S.C. § 101.

Section 101 treats an original, noninfringing modification of a preexisting work as a derivative work eligible for its own copyright, without protecting the preexisting material.

Montgomery v. Noga · filed 1999-03-05

The Copyright Act states that "[a] work consisting of editorial revisions, annotations, elaborations, or other modifications [to a preexisting work that], as a whole, represent an original work of authorship, is a 'derivative work.' " 17 U.S.C. § 101. Such a work—if it is non-infringing and sufficiently original—qualifies for a separate copyright, although this copyright does not protect the preexisting material employed in the derivative work. See 17 U.S.C. § 103 (1994); Stewart v. Abend, 495 U.S. 207, 223-24, 110 S.Ct. 1750, 1761-62, 109 L.Ed.2d 184 (1990); 1 Nimmer §§ 3.01, 3.04[A].

Section 101 treats editorial revisions, annotations, elaborations, and other modifications that collectively represent an original work of authorship as a derivative work, supporting protection for an editor’s original contribution.

Ferrer v. Interamericana · filed 1999-04-07

En esa misma corriente, el “Copyright Act” otorga al autor de una obra el derecho “exclusivo”19 de adaptar la misma, esto es, el derecho a crear obras derivadas (“derivative work”) de la obra original. ... La obra derivada incluye “... editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” ... Concluimos pues, de esa misma forma, que el editor también tiene derecho a que la autoría de su trabajo -edición- sea reconocido como tal. La edición constituye una “obra” adicional e independiente del Manual per se; por eso, constituye propiedad intelectual de su forjador.

Section 101's derivative-work definition covers a work based on a preexisting work, and whether a work is derivative is distinct from who is authorized to make it.

Pickett, Ferdinand v. Prince · filed 2000-03-14

In that sense Prince’s symbol clearly "pervades" both guitars. If it did not, the guitars might not be derivative works, but they would not be derivative works that anyone was free to make without obtaining Prince’s permission. ... It is apparent from what we have said so far not only that Pickett could not copyright his guitar, but that his guitar infringes Prince’s copyright.

Section 101 defines a derivative work as one based on preexisting works that, as a whole, represents an original work of authorship.

Yurman Design, Inc. v. Paj, Inc. · filed 2000-04-11

“Derivative” work is defined by statute as work “based upon one or more preexisting works [that] ... as a whole represents] an original work of authorship ....” 17 U.S.C. § 101. “For a derivative work to have sufficient originality, its variation from the work from which it is derived must be ‘substantial’ in nature, not ‘merely trivial.’ ”

Section 101 defines derivative works as based on preexisting works and protects only the elements original to the copyright claimant.

R. Ready Productions, Inc. v. Cantrell · filed 2000-01-07

Derivative works are those works that are “based upon one or more preexisting works.” 17 U.S.C. § 101. With derivative works, copyright protection “covers only those elements contained therein that are original with the copyright claimant.”

Section 101's derivative-work definition requires the later work to incorporate a protected work in a concrete or permanent form.

Sony Computer Entertainment America Inc. v. GameMasters · filed 1999-11-04

A derivative work must incorporate a protected work in some concrete or permanent “form.”

Section 101's derivative-work definition requires more than merely moving a copyrighted work into a different medium; the resulting work must include qualifying original authorship.

CRC PRESS, LLC v. Wolfram Research, Inc. · filed 2000-10-23

A derivative work is defined as “a work, based upon one or more preexisting works.... 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.” 17 U.S.C. § 101. ... Changing the medium in which a copyrightable work is displayed is not a sufficient change to give rise to a derivative work. ... By moving the content of the website to the Encyclopedia, therefore, Plaintiff could not have created a copyrightable derivative work.

Section 101 defines a derivative work as one based on preexisting works, including a reproduction or other work in which the original is recast, transformed, or adapted.

Mattel, Inc. v. Robarb's, Inc. · filed 2001-04-18

A “derivative work” is defined as “a work based upon one or more preexisting works, such as a[n] ... art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” ... Robarb’s use of the registered flame in a design that is substantially similar to Mattel’s registered packaging constitutes the production of a derivative work.

Section 101 defines a derivative work as a work based on one or more preexisting works that recasts, transforms, or adapts them, including original modifications.

Toliver v. Sony Music Entertainment, Inc. · filed 2001-05-18

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”. ... Having found there to be no material question of fact with regard to substantial similarity, the Court cannot find a copyright violation under 17 U.S.C. § 101, and shall grant Defendant’s motion as to Plaintiffs second cause of action.

Section 101 defines a derivative work as an original work based on one or more preexisting works, including one formed through editorial revisions, annotations, elaborations, or other modifications.

Murray Hill Publications, Inc., a Michigan Corporation Rosary Take-One Productions Limited Partnership, a… · filed 2001-08-30

In this case, the Song is a "derivative work." See 17 U.S.C. §101 ("A 'derivative work' is a work based upon one or more preexisting works, . . . . 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.'").

Section 101 defines a derivative work as a work based on preexisting works that, through revisions, annotations, elaborations, or other modifications, is an original work of authorship; the court applied that standard to protect Merkos’s compilation but not Sharf’s minimally modified copy.

Merkos L'Inyonei Chinuch, Inc. v. Doe Nos. 1-25 · filed 2001-11-09

Merkos’s selection, editing, compilation and annotation of the Rebbe’s letters (“the compilations”) constitute pro-tectable derivative works. ... “A derivative work is defined as one ‘based upon one or more preexisting works .... 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.’ ... (quoting 17 U.S.C. § 101). ... Although Merkos’s compilations of the Rebbe’s letters clearly constitute a copyrightable derivative work, the same cannot be said of Sharfs edition because Sharf has appropriated Merkos’s copyrighted compilations in their entirety and added just a few modifications. “Copyright protection is unavailable for ... derivative works ... unless, when analyzed as a whole, they display sufficient originality so as to amount to an ‘original work of authorship.’ ” ... (quoting 17 U.S.C. § 101).

Section 101 defines a derivative work as a work based on a preexisting work that recasts, transforms, or adapts it, including original editorial revisions, annotations, elaborations, or other modifications.

Bar-Meir v. North American Die Cast Ass'n MN Chapter 16 · filed 2001-12-20

The Copyright Act defines a “derivative work” to mean ... 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.” ... The Court finds no merit in Bar-Meir’s assertion that “the derived work [i.e., the course description] has life only in light of the Bar-Meir work and because of the Bar-Meir work.” ... it is undisputed that the course description — as the alleged “derivative work” — has not incorporated a portion of the book. Furthermore, even if a reasonable jury could find that some incorporation had taken place, there is no basis on which the jury could find that the course description is “substantially similar” to the book, for the reasons set forth above. Accordingly, the Court will grant summary judgment on the issue of whether the course description is an unauthorized derivative work.

Section 101 defines a derivative work as a work based on one or more preexisting works that may be recast, transformed, or adapted; a derivative work must contain a distinguishable variation from the original.

Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc. · filed 2002-04-22

The Copyright Act defines a derivative work as: “a work based upon one or more preexisting works ... in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. ... In the case of derivative works, the work must bear a distinguishable variation from the original. ... Here, it is undisputed that Tufenkian took two public domain works, the Battilossi Persian rug and the Indian Agra Blau rug, and adapted them. ... A reasonable jury could only find that the Floral Heriz is based predominantly on the public domain Battilossi and Blau rugs. Thus, the Floral Heriz is a derivative work.

Section 101 defines a derivative work as one based on a preexisting work that falls within a listed form or recasts, transforms, or adapts the preexisting work.

Ty, Incorporated v. Publications Int'l · filed 2002-05-30

It defines a derivative work as "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." 17 U.S.C. sec. 101. A derivative work thus must either be in one of the forms named or be "recast, transformed, or adapted." Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997). The textual portions of a collectors’ guide to copyrighted works are not among the examples of derivative works listed in the statute, and guides don’t recast, transform, or adapt the things to which they are guides.

Section 101 defines a derivative work as one based on a preexisting work that recasts, transforms, or adapts it, including the listed examples.

Ty, Inc. v. Publications International Ltd. · filed 2002-07-11

It defines a derivative work as “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.” 17 U.S.C. § 101. A derivative work thus must either be in one of the forms named or.be “recast, transformed, or adapted.” ... The textual portions of a collectors’ guide to copyrighted works are not among the examples of derivative works listed in the statute, and guides don’t recast, transform, or adapt the things to which they are guides.

Section 101 defines a derivative work as a work based on one or more pre-existing works, including a work recast, transformed, or adapted from them.

Dun & Bradstreet Software Services, Inc. Geac Computer Systems, Inc. v. Consulting · filed 2002-09-24

Grace admitted that the installation, testing, compiling and link editing of its W-2 programs required copying Geac's software and link editing the Geac code. Geac therefore argues that these trial admissions compel the conclusion that, "as a matter of Law," Grace's W-2 programs are infringing because they contain copies of Geac's copyright code and are derivative works of Millennium. We agree. ... The Act also defines a "derivative work" as "a work based upon one or more pre-existing works [including] any other form in which a work may be recast, transformed or adapted." 17 U.S.C. § 101. ... Thus, Geac posits that this results in literal copy and modification of Geac's W-2 program that constitutes a derivative work of the copied and called programs and code.

Section 101 defines a derivative work as one based on a preexisting work that is recast, transformed, or adapted; copying and modifying Geac's code produced such a work.

Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc. · filed 2002-09-24

Grace’s W-2 programs are infringing because they contain copies of Geac’s copyright code and are derivative works of Millennium. We agree.

Section 101 defines a derivative work as a work based on one or more preexisting works that is recast, transformed, or adapted.

Walker v. DC Comics, Inc. · filed 2003-06-18

DC contends that Walker’s “springboard” is an unauthorized derivative work of DC’s copyrighted Superman character and thus cannot be protected by copyright law. We agree. ... The Copyright Act defines a derivative work as “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.” 17 U.S.C. § 101 (emphasis added).

Section 101 defines displaying a work as showing a copy and a derivative work as a work based on one or more pre-existing works with specified modifications; a separate, transitory pop-up window does not itself display or create a derivative work from the underlying webpage.

U-Haul International, Inc. v. WhenU.com, Inc. · filed 2003-09-05

To “display” a work means “to show a copy of it, either directly or by means of film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.” 17 U.S.C. § 101. In order to infringe on U-Haul’s right to “display”, WhenU would have to show U-Haul’s copyrighted works. ... Ultimately, it is the computer user who controls how windows are displayed on the computer desktop. ... U-Haul also maintains that, by modifying the U-Haul web site, WdienU creates derivative works under the Copyright Act, 17 U.S.C. § 101. (PL’s Mem. Supp. Summ. J. at 11.) A “derivative work” is a work “based upon one or more pre-existing works” which consists of “editorial revisions, annotation, elaborations, or other modifications.” 17 U.S.C. § 101. ... The WhenU window is a distinct occurrence from the U-Haul Web page. Also, the appearance of a WhenU advertisement on the user’s computer screen at the same time as a U-Haul web page is a transitory occurrence that may not be exactly duplicated in that or another user’s computer. ... Thus, the Court concludes that WhenU does not create derivative works through its pop-up ad scheme.

Section 101's derivative-work definition does not encompass a merely temporary alteration of how a copyrighted website appears on a user's screen.

Wells Fargo & Co. v. WhenU. Com, Inc. · filed 2003-11-19

Further, in order for a work to qualify as a derivative work, it must be independently copyrightable. ... To be independently copyrightable, it must be “fixed”—that is, it must be “sufficiently permanent or stable to permit it to be ... reproduced.” See 17 U.S.C. §§ 101, 102; ... Accordingly, the WhenU advertisement does not create a work that is sufficiently permanent to be independently copyrightable, and hence does not create a derivative work.

Section 101's definition of a derivative work requires sufficient fixation and does not cover pop-up advertisements that merely obscure a website without changing or recasting it.

1-800 CONTACTS, INC. v. Com · filed 2003-12-22

Applying the “fixation” requirement here, Plaintiff has failed to show that its website, and Defendants’ pop-up advertisements are “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.” 17 U.S.C. § 101. Indeed, Defendants’ pop-up ad windows may be moved, obscured, or “closed” entirely — thus completely disappearing from perception, with a single click of a mouse. (Tr. at 63-64.) Moreover, to the extent pop-up advertisements fit the description of “transmitted images,” they are not “fixed” works, since there is no evidence that a fixation is made “simultaneously with” the pop-up advertisements’ “transmission” to the viewer of the website. ... Given that the screen display of the 1-800 Contacts website with Defendant’s pop-up ads is not “fixed in any medium,” it is not sufficiently “original” to qualify as- a derivative work under the second sentence of 17 U.S.C. § 101. ... The first sentence of 17 U.S.C. § 101 also allows “non-original” works to qualify for “derivative” work status. Since the screen display of the 1-800 Contacts website with Defendant’s pop-up ads is not a “translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation,” for Plaintiffs to prevail, it must show that Defendants have “recast, transformed, or adapted” the 1-800 Contacts website. None of these three actions seems to describe what is done to Plaintiffs website by Defendants’ pop-up ads, since Plaintiffs website remains “intact” on the computer screen. Defendants’ pop-up ads may “obscure” or “cover” a portion of Plaintiffs website- — ■ but they do not “change” the website, and accordingly do not “recast, transform or adapt” the website.

Section 101 defines a derivative work broadly to include a work based on preexisting works that is recast, transformed, or adapted.

Antioch Co. v. Scrapbook Borders, Inc. · filed 2003-09-05

Here, we find that the Defendants’ Idea Books are derivative works of the Plaintiffs stickers, as they are essentially a recasting of the stickers, in a compilation.

Section 101 protects a derivative work only when it is substantially copied from a prior work and recasts, transforms, or adapts that work, such as through translation, dramatization, or fictionalization.

Flaherty v. Filardi · filed 2005-09-14

A derivative work is one that is substantially copied from a prior work and is in the nature of a translation, dramatization, fictionalization, or other form in which a work is recast, transformed, or adapted. ... Because the Court finds that the two works are not substantially similar, it necessarily follows that “Bringing Down the House” is not a work derivative of Plaintiffs screenplay within the meaning of Section 101.

Section 101 defines a derivative work as one based on a preexisting work, including a translation, dramatization, fictionalization, condensation, or another recasting, transformation, or adaptation.

Gulfstream Aerospace Corp. v. Camp Systems International, Inc. · filed 2006-04-18

However, this Gulfstream argument is misguided, for a “derivative work” is “a work based upon one or more preexisting works, such as a translation ..., dramatization, fictionalization ..., condensation, or any form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Gulfstream’s use of its manuals in conjunction with its cmp.net tracking service, however, in no way “transforms” the manuals, as the manuals are used as-is in precisely the manner for which they were intended. Hence, any argument that Gulfstream’s cmp.net service is a “derivative work” based on the Gulfstream manuals cannot stand.

Section 101 treats a photograph of a copyrightable three-dimensional toy as a derivative work when it recasts, transforms, or adapts the preexisting work into another medium.

Schrock v. Learning Curve International, Inc. · filed 2008-01-29

In the words of Section 101, such photographs “recast, transform! ] or adaptf ]” the preexisting three dimensional toy into another medium, thus creating a derivative work “based upon” the preexisting work.

Section 101 includes a work that recasts, transforms, or adapts a preexisting work within the definition of a derivative work.

City of New York v. GeoData Plus, LLC · filed 2007-09-28

The 1998 version of the Bytes Files is a “derivative work” of the original copyrighted Bytes Files.

Section 101 defines a derivative work as a work based on preexisting works that recasts, transforms, or adapts them, including sufficiently original revisions or modifications.

Sun Media Systems, Inc. v. KDSM, LLC · filed 2008-07-01

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’. ... Both documents are “derivative works,” as defined by the Copyright Act.

Section 101 covers as derivative works only works that recast, transform, or adapt a preexisting work; separate course materials used with lawful copies do not qualify merely because they facilitate use of the book.

Peter Letterese & Associates, Inc. v. World Institute of Scientology Enterprises, International · filed 2008-07-08

But even if we were to regard Mirage Editions as representing the outer boundary of what constitutes a derivative work, what PL&A alleges in Counts 2 and 4 falls outside that boundary because defendants do not sell checksheets and drill sheets that are affixed to Big League Sales. Nor are any pages from the book photocopied as part of the coursepack. Indeed, the book is not a part of defendants’ courses in the sense that the checksheets, drill sheets, and book “as a whole, represent an original work of authorship,” 17 U.S.C. § 101; “the authorship of [the checksheets and drill sheets] is entirely different and separate from the authorship of [Big League Sales].” See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 306 (S.D.N.Y. 2000). PL&A’s argument reduces simply to the flightless claim that selling the course materials (specifically, selling the checksheets and drill sheets to be used with lawfully acquired copies of the book) facilitates a “remounting” of Big League Sales. But like any other frame, this argument does not fulfill the requirement that a derivative work must “recast, transform, or adapt” the preexisting work.

Section 101 treats a work based on preexisting works that have been recast, transformed, or adapted as a derivative work, while protecting only the author's original contribution.

Wilson v. Brennan · filed 2009-07-09

The 2002 Race Bible and the 2000 Course Itineraries & Time Schedules are derivative works because they are based on prior race bibles and course itineraries and time schedules that Wilson revised and adapted. 17 U.S.C. § 101. The copyright in a derivative work extends only to the material contributed by the author of that work and does not extend to the preexisting material employed in the work. 17 U.S.C. § 103(b); Darden v. Peters, 488 F.3d 277, 286 (4th Cir.2007).

Section 101 covers a sequel that continues an original story and recasts, transforms, or adapts the original as a derivative work.

Salinger v. Colting · filed 2009-07-01

Here, whether Defendants term ... a sequel or not, the Court finds that as a novel that continues the story of ... Catcher ... it is the kind of work that an author would ‘in general’ develop or license others to develop and “recast[s], transformas] or adapt[s]” ... Catcher ... such that it constitutes a derivative work as defined by 17 U.S.C. § 101.

Section 101 defines a derivative work as a work recast, transformed, or adapted from a preexisting work that incorporates the original work in some form.

Dream Custom Homes, Inc. v. Modern Day Construction, Inc. · filed 2011-02-22

The Court notes that, in order to be considered a derivative work under 17 U.S.C. Sec. 103, the work must be recast, transformed or adapted from a preexisting work. 17 U.S.C. 101. To be copyrightable as a derivative work, it must be substantially different from the preexisting work. ... A derivative work is one which incorporates the original copyrighted work in some form, and yet which is substantially different from the original work. ... Therefore, the Court finds as a matter of law that the Defendants did not violate Plaintiffs exclusive right to prepare derivative works by preparing the Piarulli plans and elevations.

Section 101 treats a work that recasts, transforms, or adapts an original into a new mode of presentation as a derivative work, but that status alone does not make the use transformative for fair use.

Cariou v. Prince · filed 2011-03-18

the fact that a work “recast[s], transform[s], or adapt[s] an original work into a new mode of presentation,” thus making it a “derivative work” under 17 U.S.C. § 101, does not make the work “transformative” in the sense of the first fair use factor.

Section 101 defines a derivative work as a work based on a preexisting work, including one altered through editorial revisions or other modifications that, as a whole, constitute an original work of authorship.

Kendall Holdings, Ltd. v. Eden Cryogenics LLC · filed 2012-01-17

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.” ... A comparison of the PHPK and CVI catalogs reveals that the PHPK catalog was not substantially copied from the CVI catalog and does not merely contain “editorial revisions, annotations, elaborations, or other modifications” of the CVI catalog. 17 U.S.C. § 101. ... Thus, the Court finds that the PHPK catalog does not constitute a derivative or a copy of the CVI catalog.

Section 101 defines a derivative work to include editorial revisions, annotations, elaborations, or other modifications that, as a whole, constitute an original work of authorship.

Axxiom Manufacturing, Inc. v. McCoy Investments, Inc. · filed 2012-01-31

Each manual qualifies as a copyrightable derivative work of the 1987 public-domain manual.

Section 101 treats a work as derivative when it is based on a preexisting work, and merely incorporating unprotectable parts is not enough.

Innovative Legal Marketing, LLC v. Market Masters-Legal · filed 2012-03-30

To be derivative, a work must still be “based on” prior works, not merely incorporate some unprotectable parts from the prior works.

Section 101 covers original elaborations of a preexisting work as derivative works, requiring enough originality to pass the low threshold for derivative-work protection.

Pearson Education, Inc. v. Ishayev · filed 2013-08-01

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”. ... Because those answers are “elaborations” of the copyrighted material present in the plaintiffs’ textbooks, the Court finds that the new material presented in the instructors’ manuals is sufficiently original to pass the low threshold required. On that basis, the Court holds that the plaintiffs’ instructors’ manuals are derivative works.

Section 101 defines a derivative work as a work based on one or more preexisting works, including any form in which a work may be recast, transformed, or adapted; the court applied that definition to treat the later Sherlock Holmes stories as derivative works.

Klinger v. Conan Doyle Estate, Ltd. · filed 2013-12-23

The subsequent works in the Canon, including the Ten Stories, thereby meet the definition of derivative works.

Section 101 defines a derivative work as one based on a preexisting work that is recast, transformed, or adapted.

IvyMedia Corp. v. iLIKEBUS, Inc. · filed 2017-05-15

Accordingly, the Go-toBus website is a separate work that addresses a separate topic, not a “recast, transformed, or adapted” version of the IvyMedia website. 17 U.S.C. § 101.

Section 101 treats a work based on a preexisting work as a derivative work only when its revisions, annotations, elaborations, or other modifications collectively constitute an original work of authorship.

Abs Entertainment, Inc. v. CBS Corp. · filed 2018-10-31

We therefore conclude that a derivative sound recording distinctly identifiable solely by the changes incident to the change in medium generally does not exhibit the minimum level of originality to be copyrightable.

Section 101 defines a derivative work to include a work based on preexisting works whose revisions or other modifications collectively constitute an original work of authorship.

McGraw-Hill Global Educ. Holdings, LLC v. Khan · filed 2018-06-22

The Court concludes that the instructor solutions manuals are derivative works, and are protected by Plaintiffs' copyrights for the underlying textbook.

Section 101's derivative-work standard requires original contributions beyond a merely trivial change; the remasters presumptively lacked the originality necessary for derivative-work protection.

Abs Entertainment, Inc. v. CBS Corp. · filed 2018-08-20

the remasters presumptively lacked the originality necessary to support copyright protection as derivative works.

Section 101's derivative-work standard requires original contributions beyond a merely trivial change and protects the underlying copyright owner's rights.

ABS Entm't, Inc. v. CBS Corp. · filed 2018-08-20

Both prongs arise out of Copyright's basic focus on originality.

Section 101's derivative-work definition covered the Resource Pages as unauthorized derivatives because they used the copyrighted photograph.

Michael Grecco Prods., Inc. v. Valuewalk, LLC · filed 2018-11-06

Therefore, the Resource Pages are unauthorized derivatives as a matter of law.

Section 101 defines a derivative work as a work based upon one or more preexisting works, including elaborations or other modifications.

Ronaldo Designer Jewelry, Inc. v. Cox · filed 2019-07-16

As explained above, relevant copyright practice required that applicants for derivative works disclose statements of pre-existing material. A derivative work is defined as a “work based upon one or more preexisting works,” including “elaborations, or other modifications ….” 17 U.S.C. § 101. ... And, because the wire window, the seven beads, and the vertical wrappings taken together indisputably compose a large portion of the Reuther window bracelet, the Court concludes that the Coxes have asserted good faith allegations that Ronaldo Inc. was required to disclose the works on its application and that its failure to do so rendered its application inaccurate. Thus, while a close call, the Court concludes the Coxes have raised a good faith allegation that the Power of Prayer bracelet was based on the Reuther window bracelet so as to have required disclosure of the work under prevailing copyright practices.

Section 101 defines a derivative work as a work based upon one or more preexisting works, including elaborations or other modifications.

Ronaldo Designer Jewelry, Inc. v. Cox · filed 2019-08-22

A derivative work is defined as a “work based upon one or more preexisting works,” including “elaborations, or other modifications ….” 17 U.S.C. § 101. ... Thus, while a close call, the Court concludes the Coxes have raised a good faith allegation that the Angelina bracelet was based on the Reuther bar bracelet so as to have required disclosure of the work under prevailing copyright practices.

Section 101 treats publication as distribution to the public or an offer to distribute for specified public purposes, while a public display alone and limited sharing do not constitute publication; it defines a derivative work as one based on a preexisting work, but general inspiration or ideas alone are insufficient.

Beverly Hills Teddy Bear Company v. Best Brands Consumer Products, Inc. · filed 2020-06-04

The Copyright Act defines publication as: the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. ... These facts are insufficient to demonstrate that the registrations contain an inaccuracy. First, to the extent that the works were openly displayed to passersby at the fair, the “public . . . display of a work does not of itself constitute publication.” ... Second, not every instance in which an as-yet-unpublished work is shared with others constitutes publication under the Copyright Act. “[P]ublication to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution, or sale represents only a limited publication” that does not amount to publication as that term is defined in the Copyright Act. ... In copyright law, [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”. ... This first theory is meritless as currently framed. ... To establish that the Squeezamals are derivative works, Best Brands must show that Beverly Hills based the Squeezamals on more than mere ideas. They must point to some specific, particularized expression upon which the Squeezamals were based.

Section 101 defines a derivative work as a work based on one or more preexisting works, including a work of original authorship consisting of editorial revisions, annotations, elaborations, or other modifications.

S&S Innovations Corp. v. UUSI, LLC · filed 2021-01-04

THP’s website as a whole is also derivate of S&S’s website. “A ‘derivative work’ is a work based upon one or more preexisting works . . . [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.’” 17 U.S.C. § 101.

Section 101 defines a derivative work as a work based on one or more preexisting works or a sufficiently original modification of such a work.

Schwartz v. Paramount Pictures Corporation · filed 2021-02-26

The Copyright Act defines “derivate works” as: 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.” 17 U.S.C. § 101. In assessing whether a work is derivative, the Ninth Circuit requires proof of substantial similarity—the same standard used to determine infringement. Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984). “[A] work will be derivative only if it would be considered an infringing work if the material which it has derived from a preexisting work had been taken without the consent of a copyright proprietor of such pre-existing work.” Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1343 (9th Cir. 1988) (quoting 1 Nimmer on Copyright § 3.01 (1986)). To assess infringement, courts examine whether the two works in question are “substantially similar.” Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 913-14 (9th Cir. 2010). Whether two works are “sufficiently similar to warrant a finding of infringement [is] a clear question of copyright law.” Scholastic Entm’t, 336 F.3d at 987. Plaintiff’s complaint therefore “requires an interpretation of the Copyright Act.” JustMed, 600 F.3d at 1124.

Section 101 defines a derivative work as one based on a preexisting work that recasts, transforms, or adapts it; the court applied that definition to copied and modified material from TD Ameritrade’s user manual.

TD Ameritrade Holding Corporation v. Matthews · filed 2021-08-25

A ‘derivative work’ is a work based upon one or more preexisting works” that “recast[s], transform[s], or adapt[s]” the preexisting work. ... Mr. Matthews admitted at his deposition that he included the User Manual in his copyright application, copied lines of code and block structures from the User Manual, and based portions of his registered work on modifications of TD Ameritrade’s User Manual and other TD Ameritrade materials. ... Because TD Ameritrade’s authorship of the thinkScript User Manual resulted in the exclusive right to create derivative works upon its creation, and because the Client Agreement precludes creation of derivative works based on TD Ameritrade’s work, Mr. Matthews does not own a valid copyright in his derivative work.

Section 101 defines a derivative work as one based on one or more preexisting works, and the court applied that requirement to hold that using unprotectable ideas or concepts does not create a derivative work.

HARRISON v. INFINITY WARD COMPUTER SOFTWARE · filed 2021-09-17

“To be derivative, a work must still be ‘based on’ prior works, not merely incorporate some unprotectable parts from prior works.” See Innovative Legal Mktg., LLC v. Mkt. Masters-Legal, 852 F. Supp. 2d 688, 699 (E.D. Va. 2012) (quoting 17 U.S.C. § 101). ... Because Defendant’s videogame is not a derivative work of Plaintiff’s YouTube Video, this court finds Plaintiff’s Complaint does not state a plausible claim for relief under copyright law.

Section 101 defines a derivative work as a work based on one or more preexisting works, including a work recast, transformed, or adapted from a preexisting work.

Brunson v. Capitol CMG, Inc. · filed 2021-09-29

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. 17 U.S.C. § 101. 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.” Id. ... Because Plaintiff’s bridge is not a derivative work, Publishers’ Motion has no basis to succeed.

Section 101 defines a derivative work as one based on preexisting works, including original editorial revisions, annotations, elaborations, or other modifications.

Lieb v. Korangy Publishing, Inc. · filed 2022-04-14

A work based upon such earlier material may be deemed “derivative work,” which is defined to include “a work based upon one or more preexisting works” including a “work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” 17 U.S.C. §101. ... As a factual matter, the Dan’s Papers Article is undoubtedly the work upon which the HuffPost Article is based. Indeed, the latter article is a near verbatim transcription of the former. It is therefore unquestionably inaccurate to describe the HuffPost Article as anything other than a work that incorporates the author’s earlier published work – in copyright terms, a derivative work. Lieb cannot argue otherwise.

Section 101 treats a work based upon a preexisting work, including one recast, transformed, or adapted from it, as a derivative work; the court held that the photograph depicting a character from the Mafietta film was derivative of that film.

Poppington, LLC v. Brooks · filed 2022-06-13

The Copyright Act defines a “derivative work” as “a work based upon one or more preexisting works, such as a ... motion picture version, ... 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.’” 17 U.S.C. § 101. ... Even viewing the evidence in the light most favorable to plaintiffs, the photograph is clearly “a work based upon [a] preexisting work[],” 17 U.S.C. § 101. The Court therefore holds that the photograph is a derivative work of the Mafietta film, of which Brooks is the sole author and copyright holder, so Brooks has the exclusive right to copyright the photograph.

Section 101 defines a derivative work as one based on one or more preexisting works, and the court applied a substantial-similarity test to determine whether a work is based on another.

Brunson v. Capitol CMG, Inc. · filed 2022-08-25

The Copyright Act defines “derivative work” as “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.” 17 U.S.C. § 101. ... Here, the Publishers plead no facts to suggest to the Court that Brunson’s work was derivative. ... This observation is not relevant to the actual test for determining whether a work is derivative: whether an ordinary listener would find that the two works are substantially similar. ... Accordingly, the Publishers’ claim for declaratory judgment of fraud on the copyright office fails due to (1) a lack of alleged factual matter plausibly suggesting that Brunson’s work was derivative of “Way Maker” and (2) the corresponding implausibility of the claim that Brunson’s copyright application was “factually inaccurate” specifically because she did not identify “Waymaker” as a preexisting work on which her (supposedly derivative) work was based.

Section 101 does not treat a mere change in binding as a derivative work when the underlying work is not recast, adapted, or transformed.

STEEPLECHASE ARTS & PRODUCTIONS, L.L.C. v. WISDOM PATHS, INC. · filed 2023-01-26

Spiralverse’s version of the Piano Book is not based upon Steeplechase’s original; it is the same book. It contains the exact same content, displayed in the same manner and in the same order. There are no additions or deletions. I will therefore grant summary judgment to Spiralverse on Count 1 and dismiss the copyright infringement claim.

Section 101 treats a work based on a copyrighted work as derivative when the preexisting work is recast, transformed, or adapted, and the court applied that concept to assess whether alleged works were derivative.

Income Allocation, LLC v. TruChoice Financial Group, LLC · filed 2023-06-09

The preexisting work is “recast, transformed, or adapted” in the derivative work that results. 17 U.S.C. § 101. A derivative work can infringe a copyright if it incorporates parts of a copyrighted work and is substantially similar to the copyrighted work.

Section 101 defines a derivative work as one based on a preexisting work, including an original work consisting of revisions, annotations, elaborations, or other modifications.

Barnes v. Jack Porter Inc · filed 2023-09-26

At this procedural posture, Plaintiff has sufficiently pleaded that the Mannequin implicates the right to prepare derivative works. The Copyright Act defines “[a] ‘derivative work’ as a work based upon one or more preexisting works . . . . 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.’” 17 U.S.C. § 101. Plaintiff alleges that “[t]he Mannequin includes details or features which are only present in the Second Hurdle Photograph . . . such as the angle and position from which [Plaintiff] created the Second Hurdle Photograph.” ECF No. 1 at 8.

Section 101 defines a derivative work as a work based on one or more preexisting works in a form in which the work may be recast, transformed, or adapted.

Kadrey v. Meta Platforms, Inc. · filed 2023-11-20

A derivative work is “a work based upon one or more preexisting works” in any “form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. There is no way to understand the LLaMA models themselves as a recasting or adaptation of any of the plaintiffs’ books.

Section 101 defines a derivative work as a preexisting work modified with sufficient original authorship as a whole.

Frazetta Properties, LLC v. Vanguard Productions, LLC · filed 2024-02-09

A derivative work is “‘[a] work consisting of editorial revisions, annotations, elaborations, or other modifications [to a preexisting work that], as a whole, represent an original work of authorship.’” Montgomery v. Noga, 168 F.3d 1282, 1290 (11th Cir. 1990) (quoting 17 U.S.C. § 101) (alterations in original). A “non-infringing and sufficiently original” derivative work “qualifies for a separate copyright.” Id. But only the original elements of a derivative work are protected by its copyright—preexisting material is not covered. Id. ... Here, summary judgment is denied for Defendants because a rational jury could reasonably find that the Death Dealer book covers lack sufficient originality to qualify for a derivative copyright. Indeed, this does appear close to a case of mere copying.

Section 101 treats a work that recasts, transforms, or adapts an original—including changing its medium, such as converting a novel into an e-book—as a derivative work.

Hachette Book Group, Inc. v. Internet Archive · filed 2024-09-04

The Act defines derivative works “largely by example, rather than explanation.” ... Those examples include “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.” 17 U.S.C. § 101. ... Unlike transformative works, derivative works “ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.” Google Books, 804 F.3d at 225. ... Changing the medium of a work is a derivative use rather than a transformative one. Warhol II, 598 U.S. at 529. In fact, we have characterized this exact use―“the recasting of a novel as an e-book”―as a “paradigmatic” example of a derivative work. Google Books, 804 F.3d at 215.

Section 101 treats a work as derivative only when it substantially incorporates a preexisting copyrighted work, literally or nonliterally; interoperability alone is insufficient.

Oracle International Corporation v. Rimini Street, Inc. · filed 2024-12-16

In sum, the district court erred by concluding that Rimini created infringing “derivative works” just because its programs “only interact[] and [are] useable with” Oracle software. Oracle Int’l Corp., 2023 WL 4706127, at *66. Something more is needed under the Copyright Act. Instead, a derivative work must actually incorporate Oracle’s copyrighted work, either literally or nonliterally. And as Galoob Toys shows, simply being an extension or modification of a copyrighted work without any incorporation is not enough to create a derivative work.

Section 101 defines a derivative work as a work based on one or more preexisting works, including a work with original editorial revisions, annotations, elaborations, or other modifications.

Shenzhen Langmi Technology Co., Ltd. v. The Partnerships and Unincorporated Associations Identified on Schedule A · filed 2025-07-02

Copyright law defines a “derivative work” as: 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”. 17 U.S.C. § 101.

Section 101 defines a derivative work as a work based on one or more preexisting works that recasts, transforms, or adapts the original, but derivative status alone does not make a use transformative for fair-use purposes.

American Society for Testing & Materials v. UPCODES Inc · filed 2026-04-07

The Copyright Act defines “derivative work” as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization . . . or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101; Warhol, 598 U.S. at 529. While a derivative work may be a “transformed” version of the original, the degree of difference is not sufficient to render it “transformative.”

Section 101’s definition of a derivative work can include a final script based on an earlier draft or treatment.

Shaw v. Lindheim · filed 1992-09-04

Contrary to plaintiff’s contention that a “work in progress” or draft like plaintiffs treatment cannot be deemed an underlying work and a final product like plaintiff’s script a derivative one, 17 U.S.C. § 101 states that “[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.”

Section 101 treats a flag based on a preexisting public-domain photograph as a derivative work.

Earth Flag Ltd. v. Alamo Flag Co. · filed 2001-05-17

Accordingly, the Earth Flag must be analyzed as a “derivative work” of that “preexisting” public domain photograph.

A work is not a derivative work of an original under § 101 if it transforms the original’s expression enough that the two works are no longer substantially similar, even if it derives from an intermediate work.

Well-Made Toy Mfg. Corp. v. Goffa International Corp. · filed 2003-12-02

Because the allegedly derivative work — the Huggable Lovable — sufficiently transformed the expression of' the original work — the 20-inch Sweetie Mine — such that the two works ceased to be substantially similar, “the secondary work is not a derivative work and, for that matter, does not infringe the copyright of the original work,” Castle Rock, 150 F.3d at 143 n. 9, irrespective of whether the Huggable Lovable is substantially similar to or derived from the 48-inch Sweetie Mine.

A work may be derivative if it copies or condenses a qualitatively significant portion of an earlier work, even if the works differ in overall concept and feel.

Mulcahy v. Cheetah Learning LLC Jeff Schurrer · filed 2004-10-19

But the derivative work issue, like the fair use issue, should turn on “the qualitative nature of the taking.”

Section 101 treats a sound recording based on a preexisting musical composition as a derivative work even when it incorporates no preexisting sounds.

Palladium Music, Inc. v. Eatsleepmusic, Inc. · filed 2005-02-14

The Copyright Act defines a derivative work as “a work based upon one or more preexisting works[.]” 17 U.S.C. § 101. ... Nothing in Circular 56 supports the conclusion that only sound recordings that incorporate some preexisting sounds are “derivative” works for the purposes of the Copyright Act.

Section 101 defines a derivative work as one based on preexisting work that adds original revisions or other modifications.

KnowledgeAZ, Inc. v. JIM WALTERS RESOURCES, INC. · filed 2008-09-30

The term “derivative work” is defined by statute as a work which is based upon one or more preexisting works and consists of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work.

Section 101 defines a derivative work to include original revisions, elaborations, or other modifications of a preexisting work.

Lewinson v. HENRY HOLT AND CO., LLC · filed 2009-09-23

A “derivative work” is defined in the Copyright Act as “a work based upon one or more preexisting works, ... [including a] work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” 17 U.S.C. § 101. ... Here, the Unregistered Manuscript is not simply a trivial edit of the Registered Work.

Section 101’s derivative-work definition does not make a retelling of historical events infringing when it takes no protected expression from the earlier work.

Sissom v. Snow · filed 2015-10-01

Sissom appears to invoke the concept of a derivative work, which the Copyright Act defines as “a work based upon one or more preexisting works,” a definition that includes works “consisting of editorial revisions, annotations, or elaborations.” ... But none of the material that Sissom says is taken from her book is derivative of protectable material.

Section 101 defines a derivative work as a work based upon one or more preexisting works; an edited edition based on an earlier text can qualify.

Olivares v. University of Chicago · filed 2016-09-30

Derivative works are defined as works “based upon one or more preexisting works.” See 17 U.S.C. § 101.

Section 101 defines a derivative work as a modification of a preexisting work that, as a whole, is an original work of authorship; minor changes to existing lyrics may fail that requirement.

We Shall Overcome Foundation v. The Richmond Organization, Inc. · filed 2016-11-21

The subject matter of copyright includes derivative works, defined as works “based upon one or more preexisting works” and “consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.” 17 U.S.C. § 101; Keeling v. Hars, 809 F.3d 43, 48 n.3 (2d Cir. 2015). ... The Plaintiffs have plausibly alleged that the first verse in the copyrighted work “We Shall Overcome” lacks originality.

Section 101 treats an album that gathers previously prepared sound recordings as a compilation rather than a derivative work.

Harry Fox Agency, Inc. v. Mills Music, Inc. · filed 1982-07-15

With respect to re-release on a new album, such as a “greatest hits” album, gathering of previously prepared derivative sound recordings into a new album is a “compilation” under the 1976 Act, rather than a derivative work.

Section 101’s definition of a derivative work includes a speeded-up video game.

Midway Mfg. Co., an Illinois Corporation v. Artic International, Inc., a New Jersey Corporation · filed 1983-04-11

The current rage for video games was not anticipated in 1976, and like any new technology the video game does not fit with complete ease the definition of derivative work in Section 101 of the 1976 Act. But the amount by which the language of Section 101 must be stretched to accommodate speeded-up video games is, we believe, within the limits within which Congress wanted the new Act to operate.

Section 101 includes translations of pre-existing works within the definition of derivative works.

International Film Exchange, Ltd. v. Corinth Films, Inc. · filed 1985-11-14

A derivative work can be a translation of a pre-existing work.

Section 101’s definition of a derivative work covers an audiovisual adaptation that adds original camera work, direction, and editing to a preexisting work.

National Broadcasting Co., Inc. v. Sonneborn · filed 1985-11-15

These differences in the 1960 version amount to “modifications which, as a whole, represent an original work.” NBC did not have to change the content of the theatrical production of “Peter Pan” in order to author an audiovisual work worthy of copyright protection. Rather, the television production itself was a modification of the original work.

Section 101’s definition of a derivative work covers a hat based on the public-domain Statue of Liberty.

Past Pluto Productions Corp. v. Dana · filed 1986-02-10

Plaintiffs Crown of Liberty, based on a famous statue indisputably in the public domain, is a classic example of a derivative work. See 17 U.S.C. § 101.

Section 101’s definition of a derivative work covers a work that uses protected audiovisual expression even when it tells a different story.

Worlds of Wonder, Inc. v. Vector Intercontinental, Inc. · filed 1986-08-26

At least, the work created by the Vector tapes is a derivative work, if not an exact copy.

Section 101 treats a manual based on preexisting screen displays as a derivative work.

Manufacturers Technologies, Inc. v. Cams, Inc. · filed 1989-01-30

Because the user's manual is a work based on and derived from the screen displays themselves, the scope of the copyright protection granted it is limited to those original, nontrivial aspects of the manual separate from the material encompassed within the pre-existing work.

Section 101’s definition of a derivative work excludes temporary changes to video game play that create no independent, fixed work.

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. · filed 1991-07-12

1) Use of the Game Genie by consumers to temporarily alter copyrighted video games for their own enjoyment does not create a derivative work under 17 U.S.C. § 101.

Section 101 requires a derivative work to incorporate a protected work in some concrete or permanent form.

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., Nintendo of America, Inc. v. Lewis Galoob Toys, Inc. · filed 1992-08-05

A derivative work must incorporate a protected work in some concrete or permanent “form.”

Section 101 defines derivative works to include abridgments.

Twin Peaks Productions, Inc. v. Publications International, Ltd. · filed 1993-06-07

The Act defines a “derivative work” to include an abridgment, 17 U.S.C. § 101 (1988), and gives the copyright holder the exclusive right “to prepare derivative works based upon the copyrighted work,” id. § 106(2) (1988 & Supp. Ill 1991).

Section 101 defines a derivative work as one that transforms an original work.

Castle Rock Entertainment v. Carol Publishing Group, Inc. · filed 1997-02-27

And a derivative work, by definition, transforms an original.

Section 101 requires a derivative work to contain original contributions that distinguish it from the underlying work.

Spilman v. Mosby-Yearbook, Inc. · filed 2000-09-26

To qualify as derivative works, Spilman must have made original contributions that in some way distinguish his publications from the underlying work.

A photograph is not a derivative work merely because it depicts an existing work; it must recast, adapt, or transform the earlier work’s authorship.

SHL Imaging, Inc. v. Artisan House, Inc. · filed 2000-09-28

Since plaintiffs photographs merely depict defendants’ frames and do not recast, adapt or transform any authorship that may exist in the frames, they are not derivative works.

Section 101 defines a derivative work as one that recasts, transforms, or adapts a preexisting work.

Dam Things From Denmark, A/K/A Troll Company Aps v. Russ Berrie & Company, Inc. · filed 2002-05-14

A new work that utilizes expression from a previously existing work is considered to be derivative of that work. The Copyright Act defines a derivative work as “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.” 17 U.S.C. § 101.

A derivative work must add original artistic expression to the underlying work; faithfully translating a drawing into a three-dimensional object is insufficient.

JCW Investments, Inc. v. Novelty, Inc. · filed 2003-10-30

A derivative work is defined as “a work based upon one or more preexisting works, such as... art reproduction ... or any other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. However, in order to qualify as a derivative work, that work must comprise an original artistic addition to the underlying design. ... The undisputed facts establish that neither the final Fred doll produced by the Asian manufacturers, nor MacKennan’s prototype, constitute derivative works worthy of copyright protection.

Section 101 defines a derivative work as one based on one or more preexisting works.

Watkins v. Chesapeake Custom Homes, L.L.C. · filed 2004-08-12

Upon a review of the submissions and undisputed facts of this case and the arguments of counsel at the hearing on the subject Motion, this Court is compelled to conclude that Plaintiffs’ works are derivative, because they were “based upon one or more preexisting works.”

Section 101 defines derivative works to include adaptations and condensations of preexisting works; copying the qualitative core of a marketable portion can qualify.

Mulchay v. Cheetah Learning LLC · filed 2004-10-19

This issue cannot be answered by looking at the percentage of the PMBOK that has been condensed or copied in PMP Exam Prep. Rather, a reasonable factfinder could find that PMP Exam Prep is an infringing derivative work if it copied or condensed the qualitative core of one marketable portion of the multi-purpose PMBOK.

Section 101’s definition of a derivative work covers a song that uses a preexisting composition’s melody and adds new lyrics.

Negron v. Rivera · filed 2006-05-24

Turning to the present case, the Court finds that Noche de Fiesta is a derivative work of the underlying copyrighted musical composition Nena Linda.

Section 101 requires a derivative work to incorporate substantial authorship from a preexisting work and recast, transform, or adapt it; merely photographing artwork does not make the photograph a derivative work.

Latimer v. ROARING TOYZ, INC. · filed 2008-03-13

Under 17 U.S.C. § 101, a derivative work must incorporate a substantial element of a preexisting work of authorship and recast, transform, or adapt those elements. ... Here, Latimer has not altered Hathaway’s artwork, recast it, or otherwise transformed it during the photographic process.

A derivative work under § 101 must be an original work of authorship; covering an unfinished installation with tarpaulins does not create one.

Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel · filed 2008-07-11

Moreover, the argument that the museum, by placing tarpaulins on the unfinished piece to conceal it from view, thereby created an independent, original work of art that was derivative of what was under the coverings would extend the notion of “derivative” art beyond anything contemplated by copyright law.

Section 101 requires a derivative work to incorporate a substantial element of a preexisting work and recast, transform, or adapt it; a photograph that merely depicts artwork does not qualify.

Latimer v. Roaring Toyz, Inc. · filed 2008-08-07

Under 17 U.S.C. § 101, a derivative work must incorporate a substantial element of a preexisting work of authorship and recast, transform, or adapt those elements.

Section 101 does not treat a reference guide as a derivative work when it reorganizes source material for a different purpose and no longer represents the original work of authorship.

Warner Bros. Entertainment Inc. v. RDR Books · filed 2008-09-08

As a result, the Lexicon no longer “represents [the] original work[s] of authorship.” 17 U.S.C. § 101. Under these circumstances, and because the Lexicon does not fall under any example of derivative works listed in the statute, Plaintiffs have failed to show that the Lexicon is a derivative work.

Section 101 defines a derivative work as a work based on one or more preexisting works that contains independently copyrightable original contributions.

Simplexgrinnell Lp v. Integrated Systems & Power, Inc. · filed 2009-07-27

The Copyright Act defines a “derivative work” as “a work based upon one or more preexisting works.” 17 U.S.C. § 101. “[F]or a work to qualify as a derivative work it must be independently copyrightable.” Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir.1995). This means that in order to qualify for protection as a derivative work, and be separately copyrightable, the new contributions must, “when analyzed as a whole, ... display sufficient originality so as to amount to an ‘original work of authorship.’ ” Matthew Bender & Co., Inc. v. West Publ’g Co., 158 F.3d 674, 680 (2d Cir.1998), quoting 17 U.S.C. § 101’s definition of a “derivative work.”

Section 101 treats motion pictures created using scripts as derivative works of those scripts.

Seoul Broadcasting System International, Inc. v. Young Min Ro · filed 2011-05-16

Crucially, none of the agreements makes any claim as to ownership of the television programs themselves on behalf of the Writers Association or any of its members; rather, the royalties are only for the use of the scripts, while the proprietary programming at issue here consists of various videos and broadcasts that qualify as derivative works entitled to independent copyright protection under both United States and Korean copyright law. See 17 U.S.C. §§ 101, 103(b) (providing that cinematic or motion pictures created using scripts are derivative works of the scripts and that “[t]he copyright in such work is independent of ... any copyright protection in the preexisting material”); see also Korean Copyright Act, Article 5 (“A creation produced by means of ... cinematization ... of an original work (hereinafter referred to as ‘derivative work’) shall be protected as an independent work.”)

Section 101 defines a derivative work as a work based on one or more preexisting works, including a form in which a work may be recast, transformed, or adapted.

Lennar Homes of Texas Sales & Marketing, Ltd. v. Perry Homes, LLC · filed 2015-07-24

The court concludes that the Burgundy and Bordeaux designs are derivative works as defined in § 101 and that § 409 and Space 6 required disclosure of that fact.

Section 101 defines a derivative work as one based on a preexisting work that recasts, transforms, or adapts it.

Dc Comics v. Towle · filed 2015-09-23

A derivative work is a “work based upon one or more preexisting works that recasts, transforms, or adapts the preexisting work,” Parts Geek, 692 F.3d at 1015–16 ... (alterations omitted) (quoting 17 U.S.C. § 101), such as a motion picture that is based on a literary work, see, e.g., Stewart v. Abend, 495 U.S. 207, 212–14 (1990), a three-dimensional costume based upon two-dimensional cartoon characters, see Entm’t Research Grp., 122 F.3d at 1218, or three-dimensional figurines based on cartoon characters, Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (9th Cir. 1980).

Section 101 defines derivative works as transformations of preexisting works that generally require a license.

Estate of Smith v. Cash Money Records, Inc. · filed 2017-05-30

Defendants’ second and third arguments are misplaced because they conflate the nature of a fair use with that of a derivative work. The word “transform” appears in the statutory definition of derivative works, which of course require a license and are not protected by the fair use doctrine. 17 U.S.C. § 101. Although derivative works typically involve transfor-mative changes, “[t]he statutory definition suggests that derivative works generally involve transformations in the nature of changes of form.”

Section 101 treats later textbook editions as derivative works of the original edition.

John Wiley & Sons, Inc. v. Book Dog Books, LLC · filed 2018-08-17

Later textbook editions are derivatives of the original edition. See 17 U.S.C. § 101. Thus, copyright registrations for the earlier editions constitute sufficient evidence of ownership.

A photograph featuring clothing as a whole is not a derivative work under § 101 merely because the clothing bears copyrighted artwork.

Vila v. Deadly Doll, Inc. · filed 2023-03-27

Accordingly, the Court concludes that the pants do “not qualify as a ‘preexisting work’ within the meaning of the Copyright Act,” and that the Photograph cannot be a derivative work.

Section 101 requires a derivative work to be independently copyrightable.

Woods v. Bourne Co. · filed 1995-07-25

In order for a work to qualify as a derivative work it must be independently copyrightable.

Section 101 excludes a work's mechanical or utilitarian aspects from copyright protection, so common functional graphic features are not protectable.

Presby Construction v. Clavet, et al. · filed 2001-11-19

the use of a border element [on a label] is an essentially functional design choice not protected by copyright. See 17 U.S.C. § 101 (providing copyright protection for “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects”); ... Plaintiff cannot claim an exclusive right to express technical information in a format consisting of numbered paragraphs of text, laid out in two columns, followed by pictures. To allow plaintiff to protect a graphic format described so generically “would impermissibly narrow the possibilities available to other [handbook] designers,” id. (citation omitted), by depriving them of the right to use common functional features.

Section 101 excludes functional or utilitarian aspects of a design from copyright protection, so a functional structural design cannot constitute infringement.

Wickham v. Knoxville International Energy Exposition, Inc. · filed 1983-01-05

We also note the uncontroverted evidence that economic and engineering considerations dictated the height and structural steel design of the Sunsphere tower. ... To the extent that defendants’ Sunsphere design is functional, it cannot be an unlawful infringement. 17 U.S.C. § 101; H.R. Report No. 94-1476, 94th Cong., 2d Sess. F. 55 (1976).

Section 101 excludes the mechanical or utilitarian aspects of works of artistic craftsmanship from copyright protection.

Great American Fun Corp. v. Hosung New York Trading, Inc. · filed 1997-04-17

Monkeys are fur-covered animals, and any stuffed monkey worth its salt, puppet or otherwise, will be fur-covered. Huggable Monkey’s fur covering, therefore, is unpro-teetible, as fur covering is an essential element of simian identity. That leaves the squeaker. As it is a purely utilitarian feature, it falls within the ban on copyrighting functional elements. 17 U.S.C. § 101.

Section 101 excludes the utilitarian aspects of artistic craftsmanship from copyright protection, including a functional border design.

The Yankee Candle Company, Inc. v. The Bridgewater Candle Company, LLC · filed 2001-08-06

Moreover, the use of a border element is an essentially functional design choice not protected by copyright. See 17 U.S.C. § 101 (providing copyright protection for “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects”); CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1519-20 (1st Cir.1996) (copyright law denies protection to forms of expression directed solely at functional considerations).

For a commissioned work to qualify as a work made for hire under § 101(2), the parties' signed writing must be made before the work is created.

Playboy Enterprises, Inc. v. Dumas · filed 1993-09-09(2)

This court therefore holds on the basis of the statutory scheme, the legislative history, and the reasoning of Judge Posner, that q, writing is required prior to the creation of a. work in order for the work to be considered a work made for hire within the meaning of 17 U.S.C. § 101(2).

Section 101(1) defines a work made for hire as a work prepared by an employee within the scope of employment, and the court applied that definition to photography performed under the plaintiff's control.

Sykee v. Roulo · filed 1984-01-23(1)

Thus, the plaintiff, for whom the work was prepared, is the author under section 201(b), since the photography was “a work made for hire,” that is, done by an employee within the scope of her employment as stated in subsection (1) of the definition of a “work made for hire” in section 101.

Section 101 gives an organization work-made-for-hire ownership only when the creator is its employee or, for an independent contractor, the work is in a listed category and covered by a signed writing.

Respect Inc. v. Committee on the Status of Women · filed 1993-05-28(1), (2)

Hence Committee has no rights stemming from the work-made-for-hire statutes.

Section 101 treats a work prepared by an employee within the scope of employment as a work made for hire.

EMSA Ltd. Partnership v. Lincoln · filed 1997-04-09

A "work made for hire" is defined by 17 U.S.C. § 101 as "a work prepared by an employee within the scope of his or her employment."

Under § 101(1), a work is made for hire only if it is prepared by an employee within the scope of employment, as determined under agency-law principles.

Quintanilla v. Texas Television, Inc. · filed 1997-07-11(1)

A work is a “work made for hire” if (1) it is a work prepared by an employee within the scope of employment; or (2) it is one of nine specified exceptions and the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. § 101. ... Thus, the Court is convinced and hereby CONCLUDES that no employer/employee relationship existed between Quintanilla and KIII-TV, and accordingly CONCLUDES that the Concert Videotape was not a work made for hire.

Section 101 treats a work as made for hire when it is created by an employee within the scope of employment or is a qualifying specially commissioned work made for hire by written agreement.

Ludden v. Metro Weekly · filed 1998-06-11(1), (2)

Under the Copyright Act, a copyright is a bundle of exclusive rights, see 17 U.S.C. § 106, that vest initially in the “author” of a copyrighted work. 17 U.S.C. § 201. The author is generally considered the person(s) who create the work. But if the work is created in one of two specified situations, the employer of the creator(s) will be deemed to be the author and therefore the owner of the exclusive rights in the work. Such a work is termed a “work made for hire.” A work of authorship will be a “work made for hire” if it is created (1) by an employee acting within the scope of her employment; or (2) by an independent contractor who has prepared a “specially commissioned work” that falls into one of nine categories — including “a contribution to a collective work” — where the parties have evidenced in a written instrument their intent that the work be considered made for hire. 17 U.S.C. § 101(1), (2).

Section 101(1) treats a work prepared by an employee within the scope of employment as a work made for hire, allowing the employer to own the copyright; the court held the photographer acted within that scope.

Oklahoma Natural Gas Company, a Division of Oneok, Inc., and Chris Fields Aren Almon, Mother of Baylee Almon… · filed 1998-09-01(1)

Overwhelming evidence demonstrates Mr. LaRue was acting within the scope of his employment as he took the photographs in question, including: taking photographs was part of his job; it was during work hours; he used a company camera and film; the Company paid to develop the film; he reported in to the Company throughout the day; and he never told anyone he was taking personal time. The district court properly focused on application of the work made for hire doctrine, through which the Company was entitled to ownership of the copyrights.

Section 101(2) treats a specially ordered or commissioned work for use as part of an audiovisual work as a work made for hire when the parties expressly agree in a signed writing; no specific wording is required.

Warren v. Fox Family Worldwide, Inc. · filed 2003-05-13(2)

That the agreements did not use the talismanic words "specially ordered or commissioned" matters not, for there is no requirement, either in the Act or the caselaw, that work-for-hire contracts include any specific wording.

Section 101 treats an employee's work within the scope of employment as a work made for hire, even when the employer exercises little control over an artist's creative details, and treats dances listed on commercially produced films or videotapes as published.

Graham School And Dance Foundation, Inc. v. Martha Graham Center Of Contemporary Dance, Inc. · filed 2004-08-18

Applying the teachings of CCNV, the District Court made findings as to Graham's status as an employee that are fully supported by the record, and we agree with the Court's conclusion that under the factors listed in the Restatement (Second) of Agency, Graham's dances created from 1978 through 1991, listed in the margin, 36 were works for hire. ... It is true that the Center did not exercise much control over Graham, but the absence of a hiring party's exercise of control does not mean that an artist is not an employee where other factors weigh in favor of finding an employment relationship. ... The fact that Graham was extremely talented understandably explains the Center's disinclination to exercise control over the details of her work, but does not preclude the sort of employee relationship that results in a work for hire. ... and we agree with the Court's legal conclusion that the dances listed on these documents were published for purposes of both the 1909 and 1976 Acts.

Section 101 treats a work as made for hire when an employee prepares it within the scope of employment, judged under common-law agency principles.

Pavlica v. Behr · filed 2005-11-03(1)

The Copyright Act defines a work for hire as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101. ... In determining whether a work was created within the scope of employment, the Court may consider, applying common law principles of agency, whether: “(a) [the work] is of the kind [the employee] is employed to perform; (b) it occurs substantially within authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master.”

Section 101(1) covers works prepared by employees within the scope of employment, while § 101(2) covers commissioned works by independent contractors only when the parties sign an express work-for-hire agreement and the work is for one of nine specified uses.

State v. Kirby · filed 2007-06-13(1), (2)

There are exceptions to the general rule that the author of the work is the sole copyright owner. First, the creator of the work may not be the copyright owner in a "work made for hire” arrangement. 17 U.S.C. § 201(b) (2000); Del Gallo, supra, at 871-72. Under the Act there are two sets of circumstances that lead to a work being made for hire. First, the work can be "prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101(1); see also Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (stating the factors to utilize under the common law of agency to determine if a hired party is an employee thereby falling under Section 101(1) of the Copyright Act). Neither party argues that Collett was an employee rather than an independent contract under this exception. The second work for hire exception applies to the independent contractor scenario, as exists here. 17 U.S.C. § 101(2). To apply in the independent contractor context, the parties must expressly agree in a signed written instrument that the work will be work for hire and the work must be commissioned for one of nine uses listed in the Copyright Act. Id. Because these elements are lacking in this case, the work made for hire exception to the general copyright rule does not apply.

Section 101(2) requires a commissioned work to fall within one of the statute’s listed categories and be covered by a written work-made-for-hire agreement.

Contractual Obligation Productions, LLC v. AMC Networks, Inc. · filed 2008-03-25(2)

Because there was no written agreement and because the work at issue was a sculpture, Section 101(2) of the Copyright Act could not apply.

Section 101 defines a work made for hire to include employee-created works within the scope of employment and certain commissioned works only when they fit a statutory category and the parties sign a written agreement.

Conwell v. Gray Loon Outdoor Marketing Group, Inc. · filed 2009-05-19(1), (2)

Under the Copyright Act a "work made for hire" is "(1) a work prepared by an employee within the seope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." 17 U.S.C. § 101. ... In determining whether a work is a "work made for hire" under the Copyright Act a court must first examine whether the seller is an employee or an independent contractor under rules of agency law. If the work was within the seope of employment, an agency law employee is a copyright employee, and the employer is the "author," according to 17 U.S.C. § 101(1). By contrast, works specially ordered or commissioned from independent contracts are not works for hire unless the work comes within one of the nine narrow statutory categories and parties agree in a signed instrument. 17 U.S.C. § 101(@2). ... Considering these factors, it seems plain enough that Gray Loon was an independent contractor rather than POA's employee. The website was thus not a "work made for hire."

A specially ordered or commissioned work qualifies as a work made for hire only if the parties expressly agree in a signed writing that it is a work made for hire, with both parties signing.

Home v. BROOKLINE BANCORP · filed 2010-12-01(2)

An important exception to this requirement is a "work made for hire," which includes works specially ordered or commissioned for use as a contribution to a collective work. . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. [1] 17 U.S.C. § 101. A writing executed after the work's creation that confirms a prior agreement may suffice but it must mention a "work made for hire" relationship and must be signed by both parties. Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 559-60 (2d Cir.1995); Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412 (7th Cir.1992) (the statutory language is "signed by them," 17 U.S.C. § 101(2), i.e. by both parties).

Section 101(2) requires a signed written instrument for an independently commissioned work to qualify as a work made for hire.

Jules Jordan Video, Inc. v. 144942 Canada Inc. · filed 2010-08-16(2)

The district court correctly concluded that the films could not be considered works for hire under § 101(2) because there was no written instrument. Thus, if Gasper’s creative work was performed as an independent contractor, he would be considered the author.

Section 101 defines a work made for hire, in relevant part, as a work prepared by an employee within the scope of employment, with scope of employment determined by common-law principles.

PFS Distribution Co. v. Raduechel · filed 2004-08-11

A “work made for hire” is defined in relevant part as “a work prepared by an employee within the scope of his or her employment.” 17 U.S.C. § 101. The Copyright Act does not expressly define “scope of employment.” Accordingly, courts must rely.on common law principles to interpret the phrase.

Section 101(2) permits a post-creation writing to satisfy the work-made-for-hire requirement when it confirms an explicit or implicit agreement made before the work was created.

Kid Stuff Marketing, Inc. v. Creative Consumer Concepts, Inc. · filed 2016-12-19(2)

For the reasons explained above in connection with the agreement executed by Mr. Dammer, the court applies the rule adopted by the Second Circuit in Dumas— that is, that § 101(2)’s writing requirement may be met by a writing executed after the work is created, if the writing confirms a prior agreement, either explicit or implicit, made before the creation of the work.

Section 101(1) includes a work prepared by an employee within the scope of employment in the definition of a work made for hire.

Carol Wilson Fine Arts, Inc. v. Qian · filed 2016-12-21(1)

The district court properly granted summary judgment on Carol Wilson Fine Arts, Inc.’s declaratory judgment claim because Qian failed to raise a genuine dispute of material fact as to whether the paintings were created as works for hire for Carol Wilson Fine Arts, Inc. See 17 U.S.C. § 101(1) (a work made for hire is, among other things, “a work prepared by an employee within the scope of his or her employment’), § 201(b) (in the case of a work made for hire, the employer is considered the author of the copyright, unless the parties have expressly agreed otherwise in a written instrument signed by them); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 738-39 (1989) (discussing the nature of the “work made for hire” doctrine).

Section 101(1)'s work-made-for-hire employee inquiry uses common-law agency principles to distinguish an employee from an independent contractor.

Efremov v. Geosteering, LLC · filed 2017-03-14(1)

The determination of whether an individual is an employee or independent contractor for purposes of the “work for hire” doctrine is generally made using the common law of agency.

Section 101 treats a work as made for hire if an employee creates it within the scope of employment, or if an independent contractor creates a qualifying commissioned work under a signed written agreement.

Oliver v. Johanson · filed 2018-06-29(1) (2)

If the individual is an employee and prepared the work within the scope of his or her employment, the work qualifies as a work made for hire. 17 U.S.C. § 101(1). If, on the other hand, the individual is an independent contractor, then whether the work in question is a work made for hire depends upon whether it meets the requirements of 17 U.S.C. § 101(2). Reid, 490 U.S. at 753.

Section 101(1) treats an employee’s work within the scope of employment as a work made for hire, while § 101(2) requires a qualifying commissioned-work category and an express written agreement signed by the parties.

Oliver v. Johanson · filed 2018-11-21(1) (2)

A “work made for hire” is defined as: ... (1) a work prepared by an employee within the scope of his or her employment; or ... (2) a work specially ordered or commissioned for use as a contribution to a collective work . . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Section 101 limits independent-contractor work-for-hire status to nine specified categories with a signed writing, while employee work must fall within the scope of employment.

TD Bank NA v. Vernon Hill, II · filed 2019-07-01(1)-(2)

By its terms, the Copyright Act recognizes only nine specified categories of works by independent contractors that can be deemed “for hire” through a signed writing.

For a commissioned contribution to a collective work, § 101(2) requires a signed writing designating it a work made for hire, and a writing executed years after creation generally does not satisfy that requirement absent special circumstances.

The Estate of Stanley Kauffmann v. Rochester Institute of Technology · filed 2019-08-01(2)

In the pending case, the agreement alleged to satisfy the writing requirement was not executed until five years after the year in which the articles were written, and there are no circumstances even approaching the Playboy scenario of a series of writings executed by check endorsements right after payment for each work. It is not “‘paperwork [that] remained not fully executed until after creation of the subject work.’” Id. at 559 (quoting 1 Nimmer § 5.03[B][2][b] (1994)). The 2004 Agreement does not satisfy the writing requirement of section 101(2).

Section 101(2) requires a specially ordered or commissioned work to satisfy the statutory work-for-hire conditions; without those conditions, an album cannot qualify as a commissioned work made for hire.

Yellowcake, Inc. v. Morena Music, Inc. · filed 2021-03-02(2)

As a result of this allegation, the albums categorically cannot be specially ordered or commissioned works for hire under § 101(2).

Section 101 recognizes two work-for-hire routes: a work prepared by an employee within the scope of employment, or a specially ordered or commissioned work covered by the statute and supported by a signed written agreement; an oral agreement cannot create the latter.

Yellowcake, Inc. v. Hyphy Music, Inc. · filed 2021-07-20(1) and (2)

As indicated above, there are only two ways that a work can be deemed a “work for hire.” 17 U.S.C. § 101. The FAC’s allegations are insufficient to demonstrate either method. First, there are no allegations that a written agreement exists between Chavez and Hyphy that states that the albums are commissioned works that are to be considered works for hire. In fact, the FAC alleges that the agreement with Chavez was oral. See Counterclaim ¶ 16. As a result of this allegation, the albums categorically cannot be specially ordered or commissioned works for hire under § 101(2).

Under § 101(1), a work made by an employee within the scope of employment is a work made for hire, and employee status is determined under common-law agency factors rather than any single factor.

Treadway Gallery, Inc. v. John Toomey Gallery, Inc. · filed 2022-03-30(1)

The Copyright Act does not define the terms "employee" or "scope of employment." Rather, the term "employee," as used in 17 U.S.C. § 101(1), is understood through application of the general common law of agency. ... The nonexclusive list of factors relevant to the determination of employee status includes: ... "No single factor is determinative." ... Examining the circumstances of this case in light of the Reid factors and the parties' perceptions, in 2016 and 2017, Defendant Vogel was not Plaintiff's employee and was an independent contractor. ... Stated otherwise, the 2016 and 2017 groups of photographs at issue were taken by an independent contractor and thus are not "works made for hire," and Plaintiff's copyright in the 2016 and 2017 groups of photographs as "works made for hire" are invalid.

A specially ordered or commissioned work qualifies as a work made for hire only if the parties expressly agree in a signed written instrument that it will be considered a work made for hire.

Gentile v. Crededio · filed 2022-07-01

They do not plead any “written instrument” through which they and Crededio agreed that the Work “shall be considered a work made for hire.” 17 U.S.C. § 101.

Section 101(2) treats a specially ordered or commissioned work as made for hire only when the parties expressly agree in a signed written instrument that the work is considered a work made for hire.

Hong Kong Leyuzhen Technology Co. Ltd. v. The Individuals, Corporations, Limited Liability Companies, Partnerships and U · filed 2025-08-26(2)

Alternatively, the photographs may qualify as works made for hire if there was a written agreement, signed by Hong Kong and the photography studio, in place before the photoshoot. See 17 U.S.C. § 101(2) (the parties must "expressly agree in a written instrument signed by them that the work shall be considered a work made for hire"); Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412 (7th Cir. 1992) ("The statutory language is 'signed by them,' 17 U.S.C. § 101(2), that is, by both parties, and it means what it says.").

Section 101’s work made for hire definition has no surviving common law teacher exception.

MOLINELLI-FREYTES v. University of Puerto Rico · filed 2010-12-15

The Court will not find that a “teacher exception” continues to exist based solely upon these two potential concerns. Accordingly, the Court rules that no such exception survived the enactment of the 1976 Copyright Act and, accordingly, Plaintiffs may claim no such exception in relation to Defendants’ work for hire defense.

Section 101’s work made for hire definition applies prospectively and does not govern agreements made before January 1978.

Roth v. Nathan Pritikin and Patrick M. McGrady Jr. · filed 1983-06-20

Because we believe the Act’s language, its legislative history, and generally applicable rules of statutory interpretation all mandate prospective application of the rules governing work for hire agreements, we reject appellant’s contentions.

Section 101’s work-made-for-hire definition can treat a creator as an employee when the hiring party sufficiently supervises and directs the creation, even if the creator is not a regular employee.

Aldon Accessories Ltd. v. Spiegel, Inc. · filed 1984-06-22(1)

But there is no indication in the legislative history or elsewhere that Congress was focusing on contractors who were actually sufficiently supervised and directed by the hiring party to be considered “employees” acting within “the scope of employment.” Rather, as indicated earlier, we believe and hold that Congress intended the prior law in such situations to remain unchanged.

Section 101(1) uses common-law agency principles to determine whether a creator is an employee whose work qualifies as a work made for hire; a photographer working under these conditions was an independent contractor.

Marco v. Accent Publishing Co. · filed 1992-07-23(1)

Application of the CCNV and the Restatement factors demonstrates that the district court erred in concluding that Marco was Accent’s employee. Under the common law of agency, Marco was an independent contractor.