[cc-community] Tracing is derivation?

Peter Brink peter.brink at brinkdata.se
Wed Feb 27 09:01:26 EST 2008


Terry Hancock skrev:
> Peter Brink wrote:
>> Ocetalo skrev:
>>> If I trace a raster picture, the vector result would be considered a
>>> derivation? Thanks in advance.
>> When you trace a raster picture you do not _create_ a new work you just 
>> copy the raster picture. So it would not be a derivative work just a copy.
> 
> If it's an auto-tracing (or an equally "slavish copy" made by a human),
> then this is probably true. If it's a manual tracing, it very well may
> contain creative interpretation, just like any other drawing.
> 
> "How creative" would determine the answer to the question. If it's very
> much the drawing that is the real artwork, then the raster image may be
> nothing but a "reference" and the drawing is an "original work".
> 
> If it is mostly an interpretation of the photo, but contains artistic
> elements introduced by the artist, then it's a "derivative work".
> 
> If it contains no new information, but is a mechanical reproduction of
> the original photo in detail, then it is a "copy of the work".
> 
> It isn't the method of creating a work that determines copyright, but
> the degree of "original expression" that it contains.
> 

I would assume, based on Ocetalo's question, that we are talking about a 
slavish copy here. It also, of course, matters what jurisdiction we are 
talking about. The term "derivative work" is a highly inaccurate term as 
its only valid for the US. An adaptation would in most Civil Law 
jurisdictions require an transformation that is in its own right an 
original work, it need not be as original as a wholly independent work 
but it still must be original. If a work contains parts that are direct 
copies of another work then it's not an adaptation...

Tracing a rasterpicture would almost always create a copy. If you add 
new elements really doesn't matter, parts of the picture are still 
copies of another work. The Civil Law concept of adaptation is much less 
of a "gliding scale" concept as compared to the U.S. concept of 
derivative work. There is a point where a work has been transformed in 
enough an original way that it has become an adaptation and there is 
also a point when a work has been transformed so much and in such an 
original way that it ceases to be an adaptation and becomes a new work.

IMHO (based on reading U.S. and European case law) one could use the 
following very simple graph to illustrate this line of thinking:

Civil Law
---------
Copy               Apaptation               New Work
###############*********************%%%%%%%%%%%%%%%%%%%%%

The U.S.
--------
Copy               Derivative Work          New Work
############****************************%%%%%%%%%%%%%%%%%

That is, under the Author's Right system the concept of a copy is more 
extensive as compared to the U.S. The U.S. concept of a derivative work 
is on the other hand more extensive and expansive than the Civil Law 
concept of an adaptation.

/Peter Brink


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