Remixes and adaptations

A favorite novel becomes a stage play. A poem becomes a song. A photograph becomes a collage. Adaptation is one of the ordinary ways culture moves, and it takes real imagination and effort. That effort does not answer the permission question for the work you started from.

Under U.S. law, preparing a derivative work is one of the copyright owner's exclusive rights, alongside copying and distributing, and like those rights it is subject to limitations such as fair use. A derivative work is any work based on an earlier one: a translation, musical arrangement, dramatization, fictionalization, film version, sound recording, art reproduction, abridgment, or any other form in which a work is recast, transformed or adapted. 6 Your copyright in an adaptation covers only what you added. It gives you no rights in the earlier material and does not change that material's copyright. 1 6 Two creative achievements can sit in the same final work without either one erasing the other.

Sort out permission before you build. If you use someone's copyrighted material unlawfully, your own copyright does not reach any part of the new work where that material appears, and the unauthorized adaptation can itself infringe. 1 6

Influence and adaptation are different questions

Learning from a painter's use of light is different from reproducing the protected expression in a particular painting. Starting from a broad story idea is different from adapting a specific novel. Copyright does not protect ideas, methods or systems; it protects the particular words, pictures or other expression an author chose to describe them. 2

Before you start, write down exactly what you are taking: a premise, particular words, a composition, characters as written or drawn, or an actual image. A premise or a method is free to use. 2 Specific words, images and melodies are where the permission question starts. "Inspired by" describes your motivation; it does not settle what you copied. And sharing an idea with someone else's work does not make the idea theirs.

There is no percentage that makes the old work disappear

Changing colors, rewriting some sentences or adding a new layer can matter creatively without making an unlicensed use lawful. No percentage, word count or amount of change guarantees fair use. Courts decide case by case, weighing four factors: the purpose and character of your use, the nature of the original, how much of it you used and which part, and the effect on the market for the original. Taking a small part can still weigh against you if it is the "heart" of the work. 3

The Supreme Court's 2023 Warhol decision shows why a new message is not enough. Andy Warhol made a silkscreen series from Lynn Goldsmith's 1981 photograph of Prince; in 2016 the Warhol Foundation licensed one of those images to Condé Nast for a magazine cover about Prince. The Court held that a new meaning or message does not, by itself, decide the first factor. The photograph and the licensed image served substantially the same purpose, portraits of Prince in magazine stories about Prince, and the use was commercial, so the first factor favored Goldsmith. 4

The Court judged only that licensing use and expressed no opinion on making, displaying or selling the original artworks. Each use of an adaptation gets its own analysis: commentary or criticism that targets the original has a stronger reason to borrow from it than a use that does the same job the original does. 4 If you plan to sell or license an adaptation without permission on a fair-use theory, have a copyright attorney review that specific use before you release it.

The route may already be available

Choose one route and check its limits before you start:

1. Permission. Ask the owner for the adaptation right and for each use you plan; see How to ask for permission.
2. Public domain. Anyone may adapt public-domain material, and your adaptation does not stop anyone else from adapting the same source. A recent translation, edition or illustration of a public-domain story can still be protected for what its author added, so work from the public-domain version or clear the newer one. 1 See Finding out whether something is in the public domain.
3. An open license that allows adaptation. Read the exact license; the Creative Commons rules are below.
4. Fair use or another limitation, judged use by use as above; see How fair use works in the United States.

Creative Commons 4.0 licenses treat adaptations differently, so check the license elements before you remix: 5

• NoDerivatives (BY-ND, BY-NC-ND): you may remix for private use only. You may not share the adaptation. Licenses before 4.0 with ND do not permit remixing at all.
• ShareAlike (BY-SA, BY-NC-SA): share your adaptation under the same license, or a later version of it.
• BY and BY-NC: you may share adaptations. Creative Commons recommends that your license keep at least the same elements, so a remix of NC material stays NC.
• Every license: credit the creator, say that you modified the work (trivial fixes such as a typo do not count), and keep any notes of earlier modifications. If the creator asks you to remove their name from your adaptation, you must.
• Music and video: syncing music to a moving image always counts as an adaptation under CC licenses.
• Other rights: CC licenses cover copyright and similar rights only. They do not license trademarks or patents, and you need separate permission for anyone else's publicity or privacy rights in the material.

Clarify the life of the new work

When you ask for permission, describe the adaptation and every way it will be used. A stage production, a published script, a recording, a promotional clip and a translation involve different exclusive rights: performing, distributing, reproducing and preparing derivative works. 6 The original creator may welcome one and want a separate conversation about another, so list each one.

For a songwriter adapting a poem, put these in the written agreement:

• the poem: title, author and the edition you are working from;
• the changes you may make;
• how the song may be recorded, performed and distributed;
• how credit and income will be shared.

The song can then develop as a new work with its history acknowledged. Respecting that history takes nothing from the imagination you bring to the adaptation; it is what makes the collaboration possible.

Register only what you added

When you register your adaptation with the U.S. Copyright Office, limit the claim to your contribution. Identify the earlier work under "Material excluded" and describe your own authorship under "New material included": for a film based on a novel, exclude "Text" and claim "Entire motion picture." Name as authors only the people who created the new material. 1 Registration fees are listed on the Office's fee page. 7