Legal Eagle: The Derivative Definition

Jeff Belcher is the bass player in my band, Jive Miguel. However, Jeff is a multi-talented musician, as he also plays a mean guitar, piano, and is a hell of a singer.

Jeff is also constantly writing and recording at his make-shift home studio, and recently released a CD of material he has written over the years. The tracks are in various stages, from semi-formed ideas to nearly completed songs. He’s printed up a hundred or so copies and given them away to family, friends, or people he thinks might dig them.

So why do you, the DRUM! Magazine reader, care about Jeff’s CD, which most of you likely will never come across in all your days on Earth? Well, you don’t care, but it is a great setup for me for this month’s column on derivative works, which is an important concept of copyright law.

As I’ve stated in prior columns, a copyright becomes affixed to a work once that work is reduced to a tangible medium. For most of us musicians, this means once we record our work, it is subject to a limited copyright protection. Now, this automatic copyright only extends to people who would reasonably be expected to be aware of the protected song.

Let’s take this one step further and assume that someone gets a hold of Jeff’s CD and really likes song X – likes it so much, in fact, this someone decides to finish writing the song (adding his own style) and record it for his own album. This would be considered a derivative work, and Jeff would have a claim for copyright violation against the offender.

A derivative work is a work based on one or more pre-existing works. Typically, this involves someone incorporating part of someone else’s creation into their own. Copyright law specifically provides the owner of the copyright rights in all derivative works as well as the original piece of work. Musicians writing “original” works need to be aware that it can be a fine line between being influenced by another artist and “borrowing” from another artist, to the extent that the work you create would not be considered your own by a court of law.

This article is not intended as legal advice. If you have specific legal concerns, I recommend that you personally contact an attorney.