Pixiq

The Right of Derivatives is one of your bundled rights in Title 17 of the U.S. Code. This is a very important right, as it covers anything done with or to your work. If the work is altered in any way—say, retouched, cropped, or turned from color to black and white—then your original expression is protected. This right also means that if someone changes your image by a certain percentage, then they cannot claim the resulting photo as a new work that they are now free to own and use.

This can be complicated. There are several legal standards used by courts to determine derivative infringements:

The totality method, also known as the "total concept and feel" approach, takes the work as a whole with all elements included when determining if a substantial similarity exists. The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.

The "audience" or "ordinary observer" test inquires whether an average lay observer would "recognize the alleged copy as having been appropriated frm the copyrighted work." Some courts say this test should be conducted by comparing the two works with more attention to detail than a mere "generalized impression," but "still with no more attention than could be reasonable expected by a lay or ordinary observer." So it's a great start for the creator if an average, reasonable person has a spontaneous reaction when comparing the works and forms an impression that "copying" has taken place.

Finally, there's the two-part test. In determining substantial similarity, "The 'extrinsic' test considers whether two works share a similarity of ideas and expression based on external, objective criteria," and the "intrinsic" test asks whether an "ordinary, reasonable observer would find a substantial similarity of expression of the shared idea."