Reusing Content: Derivative Work vs. Modified Work

By David Gratton on August 20, 2008

What constitutes a derivative work?

The US Copyright Office states:

A typical example of a derivative work [..] is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself.


en.wikipedia.org

It seems pretty straight forward, but is it really? Can we codify when a work is derivative? Is cropping an image or changing its colour a derivative work? Consider the following work from my wife Mandy, and let’s assume that it is under Creative Commons Attribution-No Derivative Works 3.0 United States License. (My Wife’s blog does not publish a license, but I asked for and received permission for this post.)

A Pictorial Essay, aka, Pictures to Satisfy the Relatives


mandygratton.blogspot.com

What if I cropped it?
Image 1

The image is now completely taken out of context of a roller coaster ride. Still my wife does not think this is a derivative work.

Ok, what if muck it up in Photoshop?
Image 2

This is still OK with her. Though she’s not overly pleased with me since I ruined the photo.

But what if I put the cropped image into some new context:
Image 3

WHOA! She definitely thinks this is a derivative work. The subject’s pose in her opinion is being used to imply not the joy of a Roller Coaster but the joy of receiving Jesus or blessing a congregation. Is that bad? Clearly the Creative Commons license implies that I can reuse the picture. She just doesn’t like the misrepresentation of the original context.

But what’s the point of offering a Creative Commons license for a picture unless you are able to put it into new context. Really is that not the definition of reuse? I want to reuse something that she created in a different manner than she originally published it.

I would guess that some people, including my wife, would now think that Image 1 is a derivative work, but what if i just cropped it like so:
Image 4

Seems ok, even though I was not actually at the front of the roller coaster. I did clip out the two visible minorities. Maybe it is a derivative work? Ok maybe all cropping is a dirivative work. But what if I only cropped it 5 pixels along the border so it would fit into my blog or what if I scaled it down to a thumb nail?

It just doesn’t seem that there is a clear way to define when a work is derivative or not. Clearly in each case the work has been modified, but if it is derivative or not appears to have some flexibility in interpretation. It would be useful to build software that can differentiate between a derivative work and a modified work. Although a modified work can easily be computer read, can a derivative work only be determined by a human being?

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