Derivative Works

[shannonsuzanne]

What is the name of your state? Kentucky

There is plenty of info out there about derivative works if you want to sue someone for infringement. However, there isn't anything out there to answer my question. I am a photographer and I do digital photography and manipulations in Photoshop. My question is, when is a change in a photograph that is registered considered a derivative work of the original photograph? Even the copyright office seemed kind of clueless when I tried to ask. I recently sent in my first "collection" of photographs before I published them, but now I am wanting to change a few of them by manipulating the colors and adding filters.

I know that croping and color adjustment/correction are probably not derivatives because that would be kind of stupid. But, what if I take a picture of a flower and register it and then later decide to turn the grass red is that enough of a change where I have to file again? Do I even need to file again since the original is mine and is registered? I'm only concerned because I have a website where the pictures are for sale and I don't want to leave anything unprotected. I copyright my pictures more for my protection than my ability to sue someone if that makes any sense.

Most of these posts are helpful, but they talk about 'creativity' being a major role in the deciding factor. I don't really see some of the stuff I do as being creative. Other people do. It's open for interpretation.

Any help or clarification would be helpful. I only have a handful of pictures that this applies to since I got smart and decided to take the pictures, manipulate them, send the whole group in for copyright, and then publish them. Thanks

 

[divgradcurl]

My question is, when is a change in a photograph that is registered considered a derivative work of the original photograph? Even the copyright office seemed kind of clueless when I tried to ask.

The reason the copyright office is "clueless" is because there isn't a simple, cut-and-dried, "bright-line" rule that says this is "transformative" enough to be a derivative work, and this is not. There just simply isn't any way to easily say what is or is not a derivative work -- you have to look at all of the facts of the situation.

But, what if I take a picture of a flower and register it and then later decide to turn the grass red is that enough of a change where I have to file again?

That might be sufficient to register as a derivativer work, as the choice of color could be considered "creative."

Do I even need to file again since the original is mine and is registered?

Yes, if the work is truely a derivative work. A derivative work is a "new" work that requires a separate copyright. Copyrighting the original gives you the right to control creation of derivative works -- that's one of the basic rights you get in copyright, see 17 USC 106 for the exclusive rights a copyright holder acquires -- but it doesn't give you a copyright over the "new" work.

I copyright my pictures more for my protection than my ability to sue someone if that makes any sense.

That doesn't make a lot of sense -- the only way to enforce your copyright is by suing someone in court -- I guess you mean the fear of being sued is what you use for protection?

Most of these posts are helpful, but they talk about 'creativity' being a major role in the deciding factor. I don't really see some of the stuff I do as being creative. Other people do. It's open for interpretation.

That's why there are no bright-line rules to determine what is or is not a derivative work -- the court will hear all of the facts, balance them, and come up with a decision. People on this site are not trying to be vague or cagey when using terms like "creative" or "transformative" or "creative enough," etc. -- these are terms of art used in copyright law, and you are right, people can disagree about what they mean -- but this is why we have the courts...

Any help or clarification would be helpful. I only have a handful of pictures that this applies to since I got smart and decided to take the pictures, manipulate them, send the whole group in for copyright, and then publish them. Thanks

For maximum protection, you should protect your derivative works through the copyright office.

 

[shannonsuzanne]

Re:

Thanks. Now if I could just get the copyright office to speed up their process I could file my derivatives.