What Derivative Works are Okay?
In copyright law, there are a lot of different categories for derivative works. There is no one definition or law that binds them all, and oftentimes, even once a derivative work has been appropriately classified, it’s still up to the judge whether or not that derivative work constitutes plagiarism.
Below, we’ll list the various forms of derivative content, and what kind of liability the author brings upon themselves for creating and/or publishing that derivative work.
Plagiarism
Plagiarism isn’t so much a single category of derivative work, as it can be applied to any derivative work if the judge deems fit. For example, an author might intend for a certain work of art to be used as a parody of another work, but the judge and the author of the original work might not see it that way. Likewise, a director might actually borrow a scene from another movie and even use the actual footage from that movie, and, if the judge deems that the work qualifies as parody, then it will be protected by the first amendment based fair use doctrine.
Parody
Parody includes any work which is derivative of another for the end of commenting no that original work. So this would include something like, say “The Venture Brothers”, which is full of references to other intellectual properties like “GI Joe” “He-Man and the Masters of the Universe” and various cartoons from the Hana-Barbera animation company. “The Venture Brothers” even features cameos for copyright protected characters, but because the original work is always being commented on, or poked fun at, “The Venture Brothers” remains protected under the first amendment
Parody is completely covered under the fair use doctrine, but you need to make sure that your parody actually is, legally, a parody. For example, a famous photograph titled “Dog” was once the subject of a lawsuit, when another artist used the work for a derivative work entitled “Dogs”, which satirized society at large. Because the commentary was not actually aimed at the original work, the author of “Dogs” actually lost the case.
Fan Fiction
Fan fiction would include any work that was created by a fan of a given intellectual property. Fan fiction does not extend to, say, a work of art which was actually authorized and published by the company that owns the original work. Rather, fan fiction is entirely created and published by the fans.
Fan fiction is technically illegal, but in most cases, that doesn’t really matter. The vast majority of authors actually give fan fiction their blessing, allowing fans to create and publish their own work as they see fit, so long as the fans do not publish into such a medium wherein money changes hand before a reader can enjoy that work. That’s kind of crossing the line between fan fiction and outright intellectual property theft.
Homage
Homage is kind of up to the original author and the courts, much of the time. An homage would be when you borrow elements from one work to put in your own to kind of honor the original artist. But, the original author might not see it that way. In such a case, they might consider your work to be plagiarism.
Most of the time, this isn’t really anything to worry about. Movies and books borrow plot devices, character names, even entire scenes from each other all the time, and 99% of the time, it’s no big deal.
However, if you’re writing a book that is basically “Jurassic Park” except that main character is named “Shmallan Shmant” instead of “Allan Grant”, then that’s kind of a clear cut case of plagiarism.
What is generally fine is when you might use a pre-existing work as a sort of jumping off point, borrowing general ideas and so on, but dramatically altering the work in some way to fit a unique vision. Once you’ve changed the characters in name and appearance and so on, this could be as simple as altering the ending, changing the order of scenes, etcetera. As long as your work can stand on its own as something original, more or less, then it should not be considered plagiarism.
But again, there’s no guarantee, and no solid line between homage and plagiarism.
