In 1997, Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit made the chilling observation that “[a] definition of derivative work that makes criminals out of art collectors and tourists is jarring despite [the copyright holder's] gracious offer not to commence civil litigation.” Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997). Although a number of contemporary cases involving seemingly innocent scenarios suggest that his observation is at least as true today as it was then, whether a digital photograph of an existing artwork constitutes a derivative work remains an open question.
The Copyright Act of 1976 as amended defines derivative work to mean “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Although there is no statutory definition of a “work,” other parts of the Copyright Act support the notion that “[c]opyright protection subsists…in original works of authorship fixed in any tangible medium of expression.” Thus, to the definition of “derivative work,” one must add the requirement that the work must be original.
