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by gitfan86
1292 days ago
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It is important to understand that all work is Derivative work. Unless someone was raised by a pack of wolves in the jungle they were exposed to music and art in some way during their childhood. Even someone as original as Salvador Dali was inspired and influenced by other artists. |
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Yes, everyone is influenced to some extent by what they experience, but that doesn't mean that every work you produces is derivative in the legal sense.
Under US law, to be derivative a work has to be "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. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work"."[1]
If it's not "based on an existing work", it's not considered derivative under the law.
An interesting relatively recent case in point[2] was the famous Obama "HOPE" poster created by Shepard Fairey[3] (of "OBEY" poster fame).
The Obama "HOPE" poster was clearly based on an existing photograph of Obama (thus the lawsuit). But was it "derivative" in a legal sense? That's what the lawsuit was about, and they wound up settling.
If the Obama "HOPE" poster was not based on any existing work, there'd be grounds to claim it was derivative, despite Fairey having all sorts of influences (like everyone else).
[1] - https://en.wikipedia.org/wiki/Derivative_work
[2] - https://law.marquette.edu/facultyblog/2009/02/the-obama-%E2%...
[3] - https://en.wikipedia.org/wiki/Shepard_Fairey