Copyright protects “compilations” and “derivative works.” These works still require “original authorship,” but the authorship is the expression of preexisting materials.
For example, an anthologist may collect and sequence poems written by others. A scholar may translate another’s play from French to English. A cataloguer may prepare a directory by gathering and organizing information about individuals or businesses. If there is original authorship manifested in the anthology, the translation, and the directory, these works are eligible for copyright protection.
The secondary author’s copyright in a compilation or derivative work only protects her original contributions. If the original author’s work is in the public domain it remains in the public domain. If the original author’s work is still in copyright, it use by the secondary author (the anthologist or the translator) does not alter the duration or ownership of that copyright.
An anthology of poems or a directory of facts are examples of what the Copyright Act calls a “compilation.” A compilation as deﬁned as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Section 101.
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.” Section 101.
Relationship Between Compilation and Derivative Work
The relationship and differences between compilations and derivative works are described in the legislative history:
Between them the terms “compilations” and “derivative works” which are deﬁned in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. There is necessarily some overlapping between the two, but they basically represent different concepts. A “compilation” results from a process of selecting, bringing together, organizing, and arranging previous ly existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. A “derivative work,” on the other hand, requires a process of recasting, transforming, or adapting “one or more preexisting works”; the “preexisting work” must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted.
H.R. Rep. No. 94-1476, at 57 (1976).
Copyright Limited to Author’s Original Contribution
Because copyright protection requires original creation, a copyright in a compilation or derivative work is limited to the secondary author’s original contributions
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
A movie based on an ancient novel will not remove the novel from the public domain. The movie will not prevent a second producer from basing a new ﬁlm on the same novel. The first producer’s copyright will only prevent the second producer from copying original elements from the ﬁrst ﬁlm (for example, original dialogue, soundtrack, etc.).
Unlicensed Use Uncopyrightable
Unlicensed use is not copyrightable. “Protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” Section 103(a).
Thus, an unauthorized translation of a copyrighted novel will infringe the exclusive right of the novelist to make derivative works, under section 106(2). This type of unlawful use renders the unauthorized translation uncopyrightable. But if a producer makes an unauthorized movie based on the novel, the movie’s soundtrack would still be copyrightable. The soundtrack would not make unlawful use of the protected material in the novel. In the unauthorized translation example, the translator might well complain that, even though he might be an infringer, that fact does not justify denying him a claim against another who makes an unauthorized copy of his translation. Congress, however, has rejected that contention and has stripped the infringer of a copyright claim in his infringing material, no matter how creative it might be.