Derivative Works I: What and Why

One topic I foresee myself writing heavily on is the field of derivative works; that is, works using the creative property of another artist as a foundation of a new creative work. This field includes music like mashups (see the works of Girl Talk, DJ Earworm and some compositions created for Glee) and cover songs, writings such as unofficial sequels and companion novels (like Alice Randall’s The Wind Done Gone or Gregory Maguire‘s Wicked cycle) or fanfiction, and even in visual art (such as Marcel Duchamp’s L.H.O.O.Q.). Even ‘legitimate’ works such as movies/TV based on books (like Fight Club or Dexter) fall under this umbrella.

So why is it so interesting?

The issues with derivative works tie into a massive global argument about what constitutes creative property, and what rights are attached to that ownership. I see two big issues that folks think about regarding derivative works: the right of the author to profit from their work (this is the part the courts are more interested in), and the right of the author to control their creative work’s universe.

Some of the questions that intrigue me are:

  • The difference between legitimate and illegitimate derivative works, along the axes of ‘canon’ and ‘non-canon’ (such as Buffy the Vampire Slayer Season Eight comics and all other Buffy comics), and ‘infringing’ and ‘non-infringing’  (such as when an author argues a work is infringing but the courts decide otherwise, like in the case of François Cérésa’s unofficial Les Miserables sequels), as well as any other relevant ones I eventually come across. I’m interested in things like the scripts written by creatives but for properties owned by corporations, or the difference between a commissioned anthology of stories in a universe and unauthorised fanfiction.
  • The unique properties of derivative works such as fanfiction and mash-ups, looking at the question of “Why didn’t they just make their own novel/song/play/TV show?”.
  • The question of fair use in US copyright law, and the need for a ‘fair use standard’ as proposed by Judge Pierre N. Leval all the way back in 1990. My own wish? A ‘Fair Use Board’ that certifies derivative works as following the fair use doctrine before they are challenged by the copyright owner, stopping the chilling effect the current system has on transformative derivative works.
  • The idea of the internet as reintroducing something much like the long-waning oral culture that existed pre-printing press. ‘Publication’ on the internet has become so easily accessible that a story can have many different ‘versions’ just as in the days of oral culture, offering a very interesting question about the nature of fanfiction and the cultural questions about its legitimacy.
  • The question of cultural legitimacy vs. financial legitimacy — for example, the grey area in which fanfiction is often allowed to influence the product culturally but not financially.
  • How digital media and internet culture is challenging (one might even say tearing apart) longstanding ideas about copyright and authorship.

I’m sure there are plenty of other topics under this umbrella that I could ferret out, but these are the big ones that are rolling around inside my head right now. I’ve got plenty of examples, having got my first real training in writing via fanfiction and having kept at least one eye on it ever since.

Any thoughts?


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