When a new artwork is based on an earlier work that is still protected by copyright, the rights in the earlier work come into play. In some legal systems, the new work is called a : a work based on a pre-existing work that incorporates protected elements of that earlier work while adding new creative expression.
Different legal systems use different terms. In the United States, the term “” is defined in law. In many other countries, this is covered through concepts of , , or secondary work.
Under the Berne Convention, such adapted works are protected as original works, provided they involve sufficient creative effort. The protection of these works exists alongside the copyright of the original work.
Under most copyright laws around the world, publicly using a derivative work, for example by exhibiting it, requires permission from the original artist or copyright holder. In some countries, even creating one requires permission. This principle is recognized in international treaties, including the , which gives authors the exclusive right to authorize of their works.
As discussed in Fixation and Documentation of Works, Rights in Visual Arts, and Scope of Protection topics, copyright protection does not extend to ideas, themes, or concepts as such, but only to their concrete expression. As a result, an artist is generally free to take inspiration from the ideas embodied in an earlier work, provided that no protected expression is reproduced.
When Does Transformation Become Infringement?
In practice, determining when a later work merely draws on unprotected ideas, when it constitutes a , and when it amounts to an infringing reproduction depends on the degree of and the creative choices of the second artist.
A later work may be sufficiently original to qualify for its own copyright protection but still be considered a . If it incorporates recognizable protected elements of the earlier work, permission from the original rights holder is still required. Even if the part taken from the first work is only small, there may still be an infringement of the copyright if the part taken from the earlier work was taken without permission and forms a substantial part of the original work.
Importantly, infringement can still occur when a small but important part of the first work’s expression is taken, even if it is not immediately apparent or instantly recognizable.
Ask yourself: When adapting someone else’s work, are you expressing a distinct concept, aesthetic, or message, or are you mainly mirroring the creative decisions of another artist?
The Double Layer of Rights
Copyright protection for a applies only to the original creative contribution made by its author—independently from the copyright in the pre-existing work, which remains. This means that when both the original work and the derivative work are protected, there are two sets of rights involved.
For example, imagine a painting based on a copyrighted photograph. This painting carries two layers of rights: those of the photographer, who created the original work, and those of the painter, who created the adaptation. Anyone who wants to reproduce the painting—for instance, to sell it as a print—would need permission from both the photographer and the painter..
Adaptation Across Media and Form
The transformation of Vincent van Gogh’s paintings into animated film scenes, as in the feature film Loving Vincent (directed by Dorota Kobiela and Hugh Welchman), illustrates how adaptation across media can operate in practice. Released in 2017, the film was created using thousands of hand-painted oil frames, closely following Van Gogh’s distinctive brushwork, color palette, and visual style, which were then assembled through cinematic editing. The film brings Van Gogh’s visual style to life while creating a work that stands on its own.
This example shows a classic adaptation, where the core expressive elements of the original works are preserved, but they are translated into a different medium with a new mode of experience.
Adaptation vs Derivation in Some Legal Systems
While adaptation is commonly understood as a form of , as reflected in the , some legal systems distinguish between and derivation as separate, though related, concepts.
In those systems, an generally refers to a work that remains substantially the same as the original but with a different form or medium.
A derivation, by contrast, is a work that is based on an earlier work but moves beyond it by incorporating an original creative contribution from its author. As a result, the new work is recognizably different, even while remaining connected to the earlier work.
Both adaptations and derivations would infringe the original work—assuming the original work is still protected by copyright—if they are done without authorization from the copyright owner of the original work.
Adaptation as an Extended Reproduction Right
In some countries, such as Australia and the United Kingdom, the law does not recognize a broad, separate for visual artworks in the same way it does for literary or musical works. Instead, changes such as altering the size of a work, or converting a work into another medium or dimension, are generally treated as a form of .
For example, turning a drawing into a sculpture, enlarging a painting, or recreating a work in another format may legally be considered reproduction rather than adaptation.
At the international level, the protects both and . Although its wording on has historically been linked more closely to literary and musical works, artistic works are clearly protected under the general right of in any manner or form.
In practice, when you transform or reuse protected elements of an existing artwork, permission from the copyright holder is generally required—whether the law describes the act as an or as .
See our page on to learn more.
Copyright Protection Follows the Work
It is a common misconception that changing the medium avoids copyright issues. But copyright generally follows the substance of a work, not its medium.
Consider if, for example, a well-known painting, that is still protected by copyright, was recreated as a large-scale light installation for a public exhibition. Even if the installation uses different materials, dimensions, and technologies, it may still qualify as either an adaptation or reproduction of the original painting if it preserves the original painting’s composition, and other expressive choices. Permission may therefore be required, despite the work’s new physical form and spatial experience.
Art can migrate from canvas to film, to print, to digital and beyond. However, if the essence of someone’s work is carried over into your work, the medium shift alone would not avoid infringement. The original creator’s rights travel with their creative expression into whatever form it may be transformed.
For more information, read our page on Adaptation Right.
Image credit: SimonSkafar