Question 1

Who owns a derivative work?

Accepted Answer

The person who created it owns the copyright in the new, original elements — but only if they had permission to create it in the first place. If you authorized a freelancer to create derivative works from your brand assets, they own the copyright in their additions unless your contract assigns those rights to you.

Question 2

Do I need permission to create a derivative work?

Accepted Answer

Yes, if the underlying work is copyrighted. Creating a derivative work without the copyright holder's permission is infringement — even if you add significant new creative elements. Exceptions exist for fair use, but fair use is a defense, not a right, and the outcome is unpredictable.

Question 3

What happens if I create a derivative work without permission?

Accepted Answer

The copyright holder can sue for infringement and potentially recover statutory damages of up to $150,000 per work (in the US) for willful infringement. They can also get an injunction stopping you from using or distributing the derivative work. And you can't copyright your unauthorized derivative work — it's built on infringement.

Question 4

Is translating a document a derivative work?

Accepted Answer

Yes. Translations are one of the most clear-cut examples of derivative works. If you translate a client's marketing materials into Spanish, that translation is a derivative work. Make sure your contract addresses who owns the translation — especially if you're a freelance translator working with copyrighted content.

Question 5

What's the difference between a derivative work and an original work inspired by something?

Accepted Answer

A derivative work is directly based on the original — it incorporates substantial elements of it. An original work 'inspired by' something borrows ideas, styles, or themes but doesn't reproduce the original's expression. Copyright protects expression, not ideas. Writing a space opera inspired by Star Wars is fine; writing a story using the Star Wars characters isn't.

Question 6

How should I handle derivative works in freelance contracts?

Accepted Answer

Be explicit. State whether the freelancer has permission to create derivative works from your materials. Specify who owns the derivatives. Include IP assignment language covering 'the work and all derivative works based thereon.' And address what happens when the contract ends — can the freelancer continue making derivatives? Spell it out.

Derivative Work

Definition

In Practice

Common in these contract types

Related terms

Frequently asked questions about derivative work

Create a contract with proper derivative work clauses