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Derivative

Posted: Sun Apr 03, 2011 10:23 am
by Millie
Can somebody please explain to me what constitutes a legal derivative photograph of an original workof art held by my family.

Posted: Sun Apr 03, 2011 12:14 pm
by AndyJ
Hi Millie,
The Copyright, Designs and Patents Act 1988 forbids direct copying of a copyright work without the permission of the copyright owner. It also forbids the making of an adaptation of the work. An adaptation is described thus in s21:
21 Infringement by making adaptation or act done in relation to adaptation.

(1) The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose an adaptation is made when it is recorded, in writing or otherwise.

(2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done.

(3 )In this Part “adaptation”—

(a) in relation to a literary work, other than a computer program or a database, or in relation to a dramatic work, means—

(i )a translation of the work;

(ii) a version of a dramatic work in which it is converted into a non-dramatic work or, as the case may be, of a non-dramatic work in which it is converted into a dramatic work;

(iii ) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;

(ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it;

(ac) in relation to a database, means an arrangement or altered version of the database or a translation of it;

(b) in relation to a musical work, means an arrangement or transcription of the work.

(4) In relation to a computer program a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code

(5) No inference shall be drawn from this section as to what does or does not amount to copying a work.
As you can see Adaptation does not apply to artistic works. This is because a work of art cannot generally be translated or made into a play etc.
The word 'derivative' does not appear in the Act but it is generally used to mean works which attract copyright in their own right, but which are based on so-called underlying copyright works. So for instance sound recordings of a performance, films, and broadcasts are generally derivative works. And they all require the permission of the owner of the copyright in the underlying work.
Turning to your work of art, if it is in copyright, anyone wishing to make a legal copy of it would require permission from the copyright owner. Copying includes rendering the painting in a different format, such as a photograph. It is possible to include part of an artistic work in another work without permission, provided that the amount which is copied is 'insubstantial'. What qualifies as substantial is quite hard to define, but it would generally be an infringement to include the most significant elements of the underlying work, for instance the main theme or hook in a musical work, or the story, characters and plot of a literary work.
If your work of art was painted before the twentieth century it may be out of copyright, and so making a copy of it would not then require the permission of the copyright owner. The fact that your family owns the picture now does not mean that they necessarily also own the copyright.

Posted: Sun Apr 03, 2011 8:51 pm
by Millie
Thank you, that is a very useful response. I am much wiser now!