Another important right in the bundle of rights that a copyright owner obtains is the Adaptation Right, also known as the Derivative Works Right. It gives the copyright owner the exclusive right to make or authorize and making of derivative works. That's what it does. So, this raises an obvious question, what is a derivative work? Thankfully for us, the copyright statute defines a derivative work as a work based on another preexisting works or based on another preexisting work, but where are the underlying expression is recast, transformed or adapted. So, both those components are essential. It needs to be based on another preexisting work, and the underlying content needs to be recast, transformed or adapted. It's not enough if it's merely based on another work. If you buy an art piece or a photograph and merely put it in a frame. You can't say, oh, I've created a new work because it's based on the original work. That's not what a derivative work is. It needs to be altering the underlying content. The most obvious examples are translation from one language to another or an abridgment of a longer novel into a shorter version or the generation of a movie version of a novel or a work of fiction. Those are derivative works. Now, the Derivative Work Right or the Adaptation Right is very important today because in reality in the marketplace, a lot of creativity is derivative or incremental, meaning that it builds on preexisting creativity that exists out there. So, this is a very important right in that it allows creators to control what is called the downstream market for modifications to their work. These downstream markets are oftentimes very lucrative. Imagine novelists who then are able to control and earn a good amount of a royalty when their novels and works of fiction are converted into movies. That's what we're talking about with the importance of the Derivative Works Right. The Derivative Works Right, the Adaptation Right presents a variety of tricky issues. One of the thorniest issues that emerges with the right is based on our independent creation doctrine or the basic fact that a derivative work can itself obtain copyright protection in addition to potentially being infringement. What is being an infringement? What do I mean by this? A derivative work can obtain protection as an independent copyrightable work if a few conditions are met. First, if the derivative work was prepared with the authorization of the owner of the underlying copyrighted work, the preexisting work that it is based on. So, if the owner of that work gives authorization, and then secondly, if it meets copyrights other protectability requirements, most notably originality. In that situation, the derivative work that comes out can obtain an independent copyright from the copyright that exists in the preexisting work. Think of the obviously illustration of JK Rowling writing the Harry Potter novels. The Harry Potter novel obtains separate copyright. But when Warner Brothers comes along and with the authorization of JK Rowling and her permission makes it into a movie, that movie has its own original elements, meets copyrights protectability requirements and therefore obtains copyright on its own. So, there's a separate copyright in JK Rowling's copyrighted novel and a separate copyright in the movie produced by Warner Brothers. A standard just as an aside for originality and a derivative work is something called distinguishable variation. If that is satisfied as it was with the Warner Brothers movies, then you can have two separate copyrights. But this presents a obvious question for violations of the Adaptation Right or the Derivative Works Right. Remember, I said that the Derivative Works Right gives the copyright owner the exclusive right to make or authorize the making of a derivative work. The question that emerges is whether for someone to have infringed that right, does that person need to have produced a protectable derivative work? In other words, is it enough if it was a derivative work that was not sufficient to obtain protection because it didn't meet the originality requirement? So, let's say it wasn't a distinguishable variation, can the defendant gets out of liability by saying, no it's not a real derivative work because, it wasn't original enough. Well, that would be a little bit of bootstrapping and that would not be in keeping with the spirit of what we would want to do which would allow the defendant do circumvent infringement by using a technicality. So, the law says, we have two different standards for the derivative work. One, for its protection, we insist on the existence of authorization and compliance with copyrights protectability requirements including most notably originality. But for violations of the Adaptation Right or the Derivative Works Right, we don't care as much about the protectability requirements. So, even if a work does not satisfy copyrights protectability requirements for a derivative work, it can still amount to a violation of the Adaptation Right or the Derivative Works Right, and that's in keeping with the purpose of what we're trying to do, namely, allow creators to control downstream markets for modifications and adaptations of their work. That's the reason we have two separate standards. But to recap, the Adaptation Right or the Derivative Works Right is a very, very important right in the overall bundle of rights that a copyright owner obtains, and this is for the reason that it emphasizes control over downstream markets.
