Derivative works can be protected by copyright, but the protection is narrower than people usually expect. A new copyright covers only the original material the derivative author adds. The underlying work keeps its own separate copyright, held by whoever owned it before. And the new copyright only exists at all if the derivative was created lawfully, which in most cases means with a license from the original copyright holder.
Get that second condition wrong and the result is harsh: the new work has no copyright protection of its own, and its creator is on the hook for infringement.
What Counts as a Derivative Work
Federal copyright law defines a derivative work as one based on something that already exists. The statute lists translations, musical arrangements, dramatizations, motion picture versions, abridgments, and art reproductions as examples, along with any other form in which a work may be recast, transformed, or adapted.1Office of the Law Revision Counsel. 17 USC 101 Editorial revisions, annotations, and other modifications also qualify when the changes together represent original authorship.
Familiar examples:
- A film adapted from a novel
- A musical arrangement that reorchestrates an existing melody
- A translation of a book into another language
- A revised edition of a textbook with substantial new content
- A sculpture based on a photograph
The common thread: the new work borrows recognizable elements from a preexisting work and adds something on top.
Two Conditions for Copyright in a Derivative Work
The New Material Must Be Original
The new contribution has to show at least a minimal level of creativity. In Feist Publications v. Rural Telephone Service, the Supreme Court held that the “requisite level of creativity is extremely low; even a slight amount will suffice.” But the bar is not zero. Fixing typos, adjusting colors, or making minor formatting changes will not support a new copyright. The author has to contribute something genuinely new: a fresh translation, added chapters, an original screenplay structure, a reimagined visual composition.2U.S. Copyright Office. Copyright in Derivative Works and Compilations
The Work Must Be Created Lawfully
The right to prepare derivative works belongs exclusively to the owner of the underlying copyright. It is one of the six core rights copyright grants, alongside reproduction, distribution, public performance, public display, and digital audio transmission.3Office of the Law Revision Counsel. 17 US Code 106 – Exclusive Rights in Copyrighted Works Anyone else who wants to make a derivative needs authorization, which usually takes the form of a license.
The statute is blunt about what happens without it: copyright protection “does not extend to any part of the work in which such material has been used unlawfully.”4Office of the Law Revision Counsel. 17 USC 103 A brilliant, wildly original derivative work made without permission may have no copyright at all.
What the New Copyright Actually Covers
Assume both conditions are met. The copyright in the derivative extends only to the new material the derivative author contributed. It gives that author no rights over the preexisting material, and it does not expand or shrink the original copyright.4Office of the Law Revision Counsel. 17 USC 103 The two copyrights are independent.
Take a film based on a novel. The filmmakers hold copyright over the screenplay, the cinematography, the score, and the direction. They hold no rights over the novel’s plot or characters. The novelist keeps full copyright to the text and can license it separately for a stage play, a video game, or a different film adaptation.
This also means someone else can license the same underlying work and produce their own derivative. Your copyright in your derivative does not block them, because your copyright never touched the original material in the first place.
When You Do Not Need Permission
Public Domain Works
Works whose copyright has expired, works published before copyright applied, and works dedicated to the public domain are free for anyone to build on. You can write a new adaptation of a Shakespeare play or create a graphic novel from a Jane Austen novel without asking anyone. Your new material can receive its own copyright on the ordinary terms.
Fair Use
Fair use, codified at 17 U.S.C. § 107, permits limited use of copyrighted material without the owner’s permission for purposes like criticism, comment, news reporting, teaching, scholarship, and research.5Office of the Law Revision Counsel. 17 USC 107 Courts weigh four factors: the purpose and character of the use (transformative uses and non-commercial uses fare better); the nature of the copyrighted work (factual works get more leeway than creative ones); how much of the original was taken, including whether the “heart” of it was taken; and the effect on the market for the original.
Parody is the best-known context. The Supreme Court held in Campbell v. Acuff-Rose Music, Inc. that parody “may claim fair use under § 107” because parodists need to borrow from the original to make their commentary recognizable. A work that just uses copyrighted material as a vehicle for unrelated commentary does not carry the same justification.
Fair use is decided case by case. No percentage of borrowing is automatically safe, and non-commercial use does not guarantee the outcome. When money or reputation is on the line, get a legal opinion before relying on it.
What Happens If You Skip Permission
Creating a derivative work without authorization is copyright infringement. Anyone who violates the exclusive rights in § 106 is an infringer.6Office of the Law Revision Counsel. 17 USC 501 The copyright owner can sue for actual damages plus the infringer’s profits, or elect statutory damages.
Statutory damages range from $750 to $30,000 per work infringed, at the court’s discretion. Willful infringement pushes the ceiling to $150,000 per work.7Office of the Law Revision Counsel. 17 USC 504 Courts can also award attorney’s fees to the prevailing party, which in a contested case can dwarf the damages. And the copyright owner can get an injunction that pulls the infringing work off the market.
The penalty stacks. You face infringement liability, and the derivative work you made has no copyright protection of its own because it was created unlawfully. Exposure on one side, nothing to own on the other.
AI-Generated Material
If you use AI tools to help create a derivative work, only the portions that reflect your own creative decisions are copyrightable. Material generated entirely by AI, without meaningful human creative control, is not eligible for protection. The U.S. Copyright Office requires applicants to disclose AI-generated content and to disclaim it in the registration application, much the way preexisting third-party material has to be disclaimed.8U.S. Copyright Office. Copyright and Artificial Intelligence This area is moving quickly, so check the Copyright Office’s current guidance before you file.
How To Register a Derivative Work
Registration goes through the U.S. Copyright Office, and the fastest route is the electronic Copyright Office (eCO) portal.9U.S. Copyright Office. Online Registration Help Complete the application, pay the fee, and upload a digital copy of the work.
A derivative work application asks for more information than a standard one. In the “Author Created” field, describe only the new material you contributed, such as “text,” “translation,” or “musical arrangement.” In the “Limitation of Claim” section, identify the preexisting material and exclude it from your claim.10U.S. Copyright Office. Help: Limitation of Claim Name only yourself as the author. Do not name the author of the preexisting material unless that person also contributed new material to your work.2U.S. Copyright Office. Copyright in Derivative Works and Compilations If the preexisting material was previously registered, provide the registration number and year; if a prior application is still pending, write “pending.”
The electronic filing fee is $45 if you are the sole author and claimant of a single work that is not a work made for hire. Other electronic registrations cost $65.11U.S. Copyright Office. Copyright Office Fees Paper applications cost $125.12U.S. Copyright Office. Fees A proposed March 2026 rule would raise the standard electronic fee to $85 and eliminate the $45 single-application option, so check the current fee schedule before filing.13Federal Register. Copyright Office Fees
Electronic applications with digital deposits average about 1.9 months when no correspondence is needed, and can take roughly four months in individual cases. Paper applications average 4.2 months without correspondence and 6.7 months with it.14U.S. Copyright Office. Registration Processing Times FAQs Filing electronically is faster and cheaper.