Commons:Derivative works

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Decision tree for derivative works on Wikimedia Commons Note: incomplete simplification; exceptions exist.

Many creative works are a derivative work of something, but in most cases, copyright can't be claimed on them because of varying factors. For photographs for example, exceptions include it not being a creative work, having a subject which is a non-artistic object with utilitarian functions, freedom of panorama exemptions, being freely licensed and so on. However, in all other cases, only the copyright holder has the right to authorize derivative works. These include pictures of sculptures, action figures and other copyrighted works. The same principle applies to other works, too; you can't make a movie version of a book you just read without the permission of the author either, because it would be a derivative work.

What is a derivative work?Edit

This photograph of the Venus de Milo is a derivative work. The artist died more than 100 years ago, so the statue is in the public domain—no copyright problems here provided that an appropriate license is provided to cover the photographer's copyright in the photograph



In short, all transfers of a creative, copyrightable work into a new medium count as derivative works. Also, all other modifications whose outcome is a new, creatively original work. Who may create such a derivative work? See U.S. Copyright Act of 1976, Section 106:


As opposed to an exact copy or minor variation of a work (e.g. the same book with a different title), which does not create a new copyright, a derivative work creates a new copyright on all original aspects of the new version. Thus, for example, the creator of The Annotated Hobbit holds a copyright on all of the notes and commentary he wrote, but not on the original text of The Hobbit which is included in the book. The original copyright is still valid. The person who holds the copyright to, say, a Darth Vader action figure or a Picasso statue has the exclusive right to create derivative works. That includes photographs of the work, since (as court decisions put it) that is one aspect of the copyright holder's work that he or she might want to exploit commercially.



It doesn't matter if a drawing of a copyrighted character's likeness is created entirely by the uploader without any other reference than the uploader's memory. A non-free copyrighted work simply cannot be rendered free without the consent of the copyright holder, not by photographing, drawing nor sculpting (but see Commons:Freedom of panorama).





While Disney does not hold a copyright on the photo, there may be an infringement on Disney's copyright of Pooh by virtue of copying via the photograph. In fact, you may have created a derivative work without permission.




The second part of the amendment states that




Note that while the commentary above was apparently written while the language in italics was an amendment which had not then been enacted, it was subsequently enacted and can be found in 17 USC 101.

Sculptures, paintings, action figures, and (in many cases) toys and models do not have utilitarian aspects and therefore in the US (where Commons is hosted) such objects are generally copyrighted as works of fine art. (A toy airplane, for example, is mainly intended to portray the appearance of an airplane in a manner similar to a painting of an airplane and is not intended for transporting people or goods.)[1] On the other hand, ordinary alarm clocks, dinner plates, gaming consoles or other objects of daily use are usually not copyrightable.

It is possible for utilitarian objects to be copyrightable (for example, consider an alarm clock in the shape of a cartoon character), but there is no clear line between works which are copyrightable and objects which are not, and different jurisdictions use different criteria. For example, German law has a term called Schöpfungshöhe, which is the threshold of originality required for copyright protection. In the vast majority of jurisdictions, the level of originality required for copyright protection of works of applied arts does not differ from the one for the fine arts.[2] It is higher in Germany, Italy, Japan, Russia, Slovenia, and Switzerland.[2][3] There is no legal definition for this threshold, so one must use common sense and existing case law.


Photos of people in costumes of copyrighted characters may or may not be copyrighted.[4] See Commons:Image casebook#Costumes and cosplay for more information. These should be decided on a case-by-case basis using the separability test.[7]





  • The map was created by the US government. The federal government is the greatest source of public domain maps in the United States. Federal agencies are creating maps all the time and works that US government employees create (as part of their jobs) are not protected by copyright.
  • The map’s copyright has expired. All maps published in the United States before 1923 are in the public domain because their copyrights have expired.




  • Place names. Those aren't copyrightable.
  • Colors. For example, the colors representing area features on a topographic map, such as vegetation (green), water (blue), and densely built-up areas (gray or red). Colors aren't copyrightable, either.
  • Symbols and map keys Can't be protected by copyright, even if the mapmaker invented truly original ones.
  • Geographic or topographic features. Those are facts, and facts aren't copyrightable.

However, some of these maps may be protected by copyright. Maps aren't copyrightable, if there was only one way to effectively express that idea. The court found that there was сreativity involved in the idea here was to bring together the available information on boundaries, landmarks, and ownership, and to choose locations and an effective pictorial expression of those locations. But the protection that each map receives extends only to its original expression, and neither the facts nor the idea embodied in the maps is protected.[7]


In Germany a verdict of the court in München of November 9, 2005, stated that, according to the German Copyright Law[8] topographic maps are to be considered databases, as defined in art. 87 of the law and the information is protected according to the provisions regarding databases. This also refers to the length of the protection of databases which is significantly shorter than the protection of copyright.[9]




This depends on the country of the toy.

Some countries do not grant copyright protection to utilitarian objects (see COM:UA). In a subset of those countries, such as Japan, toys are generally considered to be utilitarian objects.[10]

In other countries, such as the United States (where Commons is hosted), most toys are considered to be art. In the United States, it is the same thing whether you take a picture of a sculpture or a picture of Darth Vader. Both are copyrighted; in both cases, the copyright of the photograph does not void the original copyright, and in both cases you will need the permission of the original creator. You cannot upload pictures of a sculpture by Picasso, and you can't upload photographs of Mickey Mouse or Pokémon figures.

On the legal rationale of toys as art in the US, a toy airplane, for example, has the purpose of depicting the appearance of an airplane in the same manner as a painting of an airplane which is different from an actual airplane having the purpose of transporting persons or goods.[1] Dolls' clothing has been found to be copyrightable in the US on the grounds that it does not have a utilitarian function of providing protection from the elements or preserving modesty in the manner that clothing for humans does (the latter is a "useful article.")[1]

Numerous lawsuits have shown that Mickey Mouse or Asterix have to be treated as works of art, which means they are subject to copyright, while a common spoon or a table are not works of art. Such items can be copyrighted, perhaps, if they were given a very special form by a designer and presented as art (and not a spoon), but the ones you use at home are probably not.[11] Some toys are also too simple to meet the threshold of originality, for example, the Kong dog toy.[8]


But Wikimedia Commons isn't commercial! And what about fair use?Edit

Wikimedia Commons is not a commercial project, but the project scope requires that every single picture may be used commercially via free licenses. Every image or media file must be free of third-party copyrights.

Fair use is not allowed on Commons. "Fair use" is a difficult legal exception for pictures that are used in a certain limited context; it is not applicable on entire databases of copyrighted material.

But how can we illustrate topics like Star Wars or Pokémon without pictures?Edit



What about images of copyrighted characters in public domain works?Edit


Sometimes individual works featuring copyrighted characters (such as Mickey Mouse or Superman) enter the public domain. Although the works themselves are in the public domain, any portions that include the copyrighted characters are still restricted by copyright law.[13][14] This concept even extends to non-sentient "characters", such as the Batmobile.[15] Derivative representations of characters are protected by copyright law in the United States until the original work that created the character is no longer copyrighted.[16] This protection is separate from trademark protection.

I've never heard about this before! Is this some kind of creative interpretation?Edit




  • Cave paintings: Cave walls are usually not flat, but three-dimensional. The same goes for antique vases and other uneven or rough surfaces. This could mean that photographs of such media can be copyrighted, even if the cave painting is in the public domain. (We are looking for case studies here!) Old frescoes and other PD paintings on flat surfaces should be fine, as long as they are reproduced as two-dimensional artworks.
  • Photographs of buildings and artworks in public spaces: Those are derivative works, but they may be OK, if the artwork is permanently installed (which means, it is there to stay, not to be removed after a certain time), and in some countries if you are on public ground while taking the picture. Check Commons:Freedom of panorama if your country has a liberal policy on this exception and learn more about freedom of panorama. (Note that in most countries, freedom of panorama does not cover two-dimensional artworks such as murals.)
    • Full freedom of panorama: Algeria, Armenia, Australia, Austria, Bahamas, Bangladesh, Belize, Bolivia, Brazil, Burma, Canada, Chile, People's Republic of China, Colombia, Croatia, Cuba, Czech Republic, Dominican Republic, Ecuador, Egypt, Germany, Ghana, Guatemala, Guernsey, Honduras, Hong Kong, Hungary, India, Ireland, Israel, Jamaica, Kenya, Liechtenstein, Macedonia, Malaysia, Mexico, Montenegro, Netherlands, New Zealand, North Korea, Pakistan, Paraguay, Peru, Poland, Portugal, Serbia, Singapore, Slovakia, Sweden, Spain, Switzerland, Thailand, Tunisia, Turkey, United Kingdom, Venezuela, Vietnam
    • Restricted or no freedom of panorama:Albania*, Argentina**, Azerbaijan*, Bahrain, Belarus*, Belgium, Bosnia and Herzegovina*, Bulgaria**, Cambodia, Costa Rica****, Denmark**, Estonia*, Finland***, France, Georgia*, Iceland*, Iran, Italy, Ivory Coast, Japan***, Kazakhstan*, Kosovo*, Kyrgyzstan*, Latvia*, Lithuania*, Lebanon, Luxembourg, Mali, Moldova*, Mongolia*, Morocco, Namibia, Norway**, Paraguay*, Phillippines, Qatar, Romania*, Russia***, Saudi Arabia, Senegal, Slovenia*, South Africa, South Korea*, Sri Lanka, Sudan, Taiwan (Republic Of China) **, United Arab Emirates, Uzbekistan*, Ukraine, USA**, Vatican City
      * These countries limit their freedom of panorama to non-commercial uses of the image only.
      **These countries have freedom of panorama only for buildings, but not for sculptures or other works.
      ***These countries have full freedom of panorama only for buildings, whereas images of sculptures or other works may only be reproduced for non-commercial purposes.
      ****These countries have freedom of panorama only for sculptures, but not for buildings and other architectural works.

See alsoEdit

  • Collages are combinations of multiple images arranged into a single image
  • Screenshots are a type of derivative work


  3. VSL0069492. Retrieved on 29 October 2013.
  5. a b [1] Public Domain Sherpa
  7. [2] Mason v Montgomery Data et al 1992
  8. [3] Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz)
  9. [4] Landgericht München I - Datenbankschutz für topografische Landkarten
  10. [5]
  11. [6] Public Domain Sherpa
  13. Siegel v. Warner Bros (2009)
  15. DC Comics v. Mark Towle (2013)
  16. Warner Bros. v. AVELA (2011)

External linksEdit

Case studies
Other useful sites
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