In 1997, Judge Frank Easterbrook of the 7th U.S. Circuit Court of Appeals 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.
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