A derivative work is a work, based on an original work, which
adds new original expression while retaining the basic expression
of the original work as well. Derivative works are universally
protected throughout the world.
There are two requirements for a work to be considered
derivative. The first is that it must be based on the existing
expression of an original work. If it has not borrowed the
expression, or it merely borrowed the general idea of the original
work, it is not a derivative work under the Copyright Law.
The second requirement is that it must include the creativity of
the adapter who re-creates the work, based on the expression of the
author, in such a way that it contains originality that adds to the
original work and is thereby qualified as an independent work. If
it merely uses the original expression but lacks additional
creativity, it is not a new work and cannot be termed
"derivative". It must be noted that since a derivative
work borrows the expression of the original work, the requirements
for the original portions are usually more stringent than those
that apply to the original work. In other words, the derivative
work must make substantive changes to the original work and meet
all of the requirements for originality imposed by the
Copyright Law in order to enjoy legal protection.
Is a musical arrangement protected under the Copyright
To obtain protection under the Copyright Law, a musical
arrangement must first constitute an original work. In 2003, the
Beijing No.1 Intermediate People's Court heard a case filed by
Li Lixia against Li Gang, Chen Hong and Cai Guoqing for infringing
neighboring rights and violating a recording production contract.
This was the first case to address the issue of whether the right
of composition is independently protected under the Copyright
Law. The court ruled that a musical work refers to a song,
symphony or other work, with or without lyrics, that can be sung or
played. Since the score of the musical arrangement of the
soundtrack in dispute only allocated instruments and divided and
combined parts without changing the basic melody of the musical
work, the process of arrangement was only a kind of service with
the purpose of transforming the music work into a sound recording.
Consequently, the score of the arrangement, as one of the results
of such services, did not possess the originality required by the
Copyright Law and thus did not enjoy copyright
There is no simple answer to the question of whether or not a
new arrangement of a musical performance is legally protected under
the Copyright Law. To make a comprehensive determination,
we must determine if there has been a substantive change in the
arrangement compared to the original and if it incorporates enough
originality to obtain protection under the Copyright
(Source: Can New ArrangementsBeLegally
Protected under the Copyright Law? by Jin Liqun)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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