How Original is Your Work?

By Go-eun Son

When you copyright your work, keep three things in mind: copyright protects 1) original works of authorship 2) fixed in a tangible medium of 3) expression. That means literary, dramatic, musical, artistic works such as poetry, novels, movies, songs, and even computer software are under copyright protection.

Then how original is enough to be copyrightable? Basically “original” means 1) your work must be independently created and 2) it has to have minimum quantum of creativity. Good news is this bar of creativity is pretty low.

Not only is a novel you created protected, but also a film adapted from your book can be copyrighted. But the film needs to get an underlying right, a filming right here, to prepare filming. Because you, copyright owner has a right to produce a derivative work from your original work, the film has to license this right to a derivative work. In the movie, the film might add new dialogue that was not in the prior work. And now the film has its own copyright. This copyright is separate from the copyright of the original work because the film has the license and you added some modicum of creativity to the work.

For example, there is British novel “Fingersmith” (2002) written by Sarah Waters. In Victorian England, Sue, a young thief, participates in a scam to defraud a rich heiress by becoming her maid. Sue’s plan goes horribly wrong when two women fell in love. And in 2016, South Korean director Chan-Wook Park adapted the novel to create “the Handmaiden”. The storyline is basically same as the original. But he made some noticeable changes. Background is now in 1930s when Korea was colonized under the control of Japan. So you will see two languages, Korean and Japanese used back and forth throughout the movie, and considering running time, some points have been omitted that were detailed in the novel.

What if you create a derivative work based on a non-fiction, such as a history book? History itself is a fact, which is not original. Then you may not need to license a copyright of the book.  Here is another interesting case. Author Jay Robert Nash wrote a non-fiction book about famed criminal John Dillinger, imagining that he did not die at the hands of the FBI but instead lived to a ripe age in California. An episode of the CBS police procedural Simon and Simon used this premise and Nash sued for copyright infringement. But he failed to prove infringement because The information in his book was presented as fact. Therefore, others can take those “facts” and write their own story from it. Author’s copyright on nonfiction books was not infringed by the television program which used none of his expression. Make sure that your work is original enough to be protected under copyright.

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