On derivative works. Which part is creative in a series about zombies?

An interesting case was recently discussed in the foreign media concerning the copyright to the popular series “The Walking Dead.” Frank Darabont, a well-known screenwriter and director, assumed the role of its showrunner, responsible for the overall concept and nature of the series. The agreement with AMC television granted him remuneration for the exploitation of “derivative works” from the series, such as sequels, prequels, spinoffs, etc. Additionally, Darabont was given preferential rights to participate in such works (whereby he should also be offered to participate). Darabont and AMC terminated their relationship following two seasons of the series, but the series continued on AMC with other creators.

Recently, the station broadcast a series under the name “Fear the Walking Dead,” which takes place in the same world as the underlying series. However, Darabont did not receive any money for this, nor was he offered to participate in its creation.

It looks like AMC clearly doesn’t want “Fear the Walking Dead” to be considered a derivative work, e.g. a spinoff of the original series. It avoids this expression and instead refers to the new show   as a “companion series.” Compared to “The Walking Dead”, the new series, although set in the same reality, has totally different characters and tells a completely different story. A spinoff, on the other hand, is normally understood as a work that is separate from the underlying work, though it has (a) common protagonist(s) or there are interrelations in the storyline.

It can be presumed such a formula for the new series in not coincidental. AMC and Darabont have remained in conflict ever since their cooperation terminated and a court dispute remains between them. Such construction of “Fear the Walking Dead” was probably deliberate so that no derivative work was created, as this would require paying royalties for Darabont.

It is interesting how such a dispute would be resolved in Poland. Polish law recognises such problems in a completely different way. As a rule, the underlying work’s author must give consent for every exploitation of a derivative work. A “derivative work” is, however, a term that has not been clearly defined by the Polish legislature. Only by example does the law indicate that derivative works are “in particular translations, modifications, adaptations.” It is assumed that such works use essential, creative elements of the original — for example a translation, which is a literary modification of the underlying work’s content, or an adaptation, i.e. “transformation” of the work into another form of art (e.g. the film adaptation of a book). The consent of the underlying work’s author must be given for the exploitation of a derived work (e.g. publishing of a translated poem) — which is why we refer to them as derivative works.

Polish law distinguishes between derivative works and inspired works, i.e. works whose relationship with the original is casual and their exploitation does not necessitate the consent of the authors. It’s about providing inspiration directly to an artist to create, as well as using those elements of the original which are not creative — for example a literary style, an overall concept or a theme (the topos).

Somewhere in between there are instances where some of the work’s elements, also creative, are taken over; however, no direct exploitation of someone’s work occurs. An example may be using a specific character from someone’s novel in a new work. This is what fan fiction is based on — fans create new stories for the characters of well-known movies or books. A similar situation relates to spinoffs, including “Fear the Walking Dead.”

As is often the case, the legal status of this type of situation in Polish law depends on many factors. Usually, the judgement of the Supreme Court of 1972 is quoted in such cases, which defines the border between inspiration and creation in the following way:

As a criterion distinguishing between an inspired work and a derivative work (…) one shall consider a creative transformation of the elements of inspiring work in such a way so that the nature of the inspired work could be defined by its own, individual elements (and not the transformed elements).

In the case of an inspired work (subject to independent copyright law) only a thread of third party’s work is derived, a new work is created and it has its own independent nature.

In other words: when new, genuine elements dominate and they predominantly influence the shape of the work, we can consider this an independent, new work. If, however, the work is based mainly on derived elements, it cannot be considered an original. The criterion here is the reception of the work in its entirety — it’s not about the number of derived elements in relation to the original elements but about the overall impression.

This does not explain whether a spinoff is a derivative work or not and whether the author’s consent is needed for its exploitation. Under Polish law, this aspect would have to be investigated each time by the court in order to decide whether — as would be the case for “Fear the Walking Dead” — setting the plot in the same world influences the new work to such an extent that it makes it derived from the original. A Polish judgement of this type would be an interesting precedent. Meanwhile, the American dispute on “Fear the Walking Dead” is still ongoing.