Is your work derivative or transformative?

Sometimes, we use the work of others to inspire our own creativity, I mean, everything starts from somewhere, so that makes sense. But is your work derivative or transformative? It's important to understand the difference.

Is your work derivative or transformative?

You can be accused of copyright infringement if your new work is substantially similar to the work that either inspired you, and if you’ve used identifiable elements from that work.

If something is "substantially similar" – if it doesn’t contain new analysis, or a new message, or significant changes from the original work – then that’s a derivative. Making derivatives is something only the original copyright owner is legally allowed to do.

But if your new work is different from the original work in ways that create a different story, that’s transformative.

It basically comes down to asking if the material from the original work has been transformed by adding new expression or meaning, and has value been added by creating new information, aesthetics, insights and understandings? If the new work is clearly and sufficiently transformed, it qualifies as a new work, and gets its own copyright protection.

This is why an author can create a standalone guide to someone else's work - it's providing a new analysis. It's also how a collage artist can incorporate someone else's copyrighted visual art in their own work, when they're using it to say something different than the original. Here's an interesting, real-life case about a photograph of the artist formerly known as Prince.

Sometimes the original creator is okay with, or even encourages derivative works – cosplay, fan fiction, tiktok, for example, are blatantly derivative. But you should never assume that your use of someone else’s work is transformative or that you’ll be protected if you simply pay tribute or acknowledge the original creator. And if your new work is for commercial reasons, make sure to be as unique as possible, or you could find yourself on the wrong end of a law suit.

Be inspired by each others’ work, but respect the story and find your own voice. Being original gives you the strongest protection of your creative rights.

Are you interested in finding out how copyright applies to you?

We're offering FREE, one hour Creative Rights for Creative People workshops. Find out more here >>

Written by Karen Workman, Kaiwhakahaere Whakapa | Creative Rights Educator

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