What is a derivative work?
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 Law?
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 protection.
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 Law.
(Source: Can New Arrangements Be Legally 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.
