A Bit About Derivative Works

11 January 2009

With all the recent talk about the merits of derivative works (euphemistically, remixes), sparked by things like the new Richard Prince lawsuit, Sita Sings the Blues' struggle, and the release of Lessig's Remix, a (very) small glimpse at the importance of derivative works in our history seems appropriate.  And, as today is Sunday, why not a small glimpse using church hymns?

Whether the argument is that there should be more compulsory licenses or that works should have less restrictions in order to better facilitate remixing, someone always seems to argue that the artist should just create everything on their own.  In some cases, people even go so far as to argue that derivative works are some how not as artistic or worthy as wholly original works (whatever that means).

The Derivative Work Right

For those who are unfamiliar, a derivative work is a work that includes an existing (or part of an existing) work.  In some cases, the pre-existing works can be central to the new work or even the subject upon which the new work comments.  In other cases, the pre-existing works are ancillary, just the final little flourish or placed there in the new art for only reasons the author knows.  In all cases (under US Copyright law, and in many cases in the rest of the world) the making of derivative works is one of the rights included in the copyright holder's bundle of rights.  (17 USC 103.)  This does not mean only the original creator can create a new work based on this old one.  It does mean that no one can legally use a work still protected by copyright to create a derivative work without permission from the copyright owner.  This permission usually comes in the form of a license.

One place we can look to see the importance of the derivative works right is the list of Creative Commons licenses.  Two of the four basic licenses, which can be combined in different ways as the author chooses, are related to derivative works.  The most obvious is the nd license, no derivative works.  This license means, you guessed it, others are not free to use the licensed work to create derivative works without permission from the rights-owner.  The other license related to derivative works is the sa license, share alike.  This licenses allows others to use the work to create their own derivative works but requires that the new derivative work be released under the same conditions as the original work.

Derivative Works in Church

Derivative works have played an important part in forming many of the world's classics.  The list of famous works based on previous works could go on for days.  Here, we are going to look at one very small subset of culture where derivative works have played a large role: church hymns.

A great number of church hymns are derivative works by their very nature, being bible verses set to music.  There are also a large amount of hymns created by setting old poetry to new music or new lyrics to old tunes.  The United Methodist Hymnal lists over 60 tunes used by more than one hymn in the hymnal, The Presbyterian Hymnal has over 90.  In fact, it's harder to find a hymn where the lyrics and music were written by the same person, or even in the same year, than it is to find hymns created by combining a pre-existing work with something else.

The classic hymn "All Creatures of Our God and King" is a great example of church hymns combining different works.  The words were written by St. Francis of Assisi sometime around 1225.  One English translation was done by William Draper in the early 20th century.  (The Methodist hymnal says 1925; the Presbyterian hymnal says 1910.)  The tune is an old German tune from 1623, Geistliche Kirchengesang, which is also used in several other hymns.  And the harmony for the tune was added in 1906 by Ralph Vaughan Williams.  Incidentally, both the Methodist and Presbyterian hymnals list the hymn as still being under copyright protection.  The Methodist hymnal has an arrangement marked (c) 1989 and the Presbyterian hymnal says (c) 1926 (renewed). 

As you can see, this classic hymn was created by the work of many different people over many (many) years, each contributing their particular talents to the work.  Could Ralph Vaughan Williams written an entirely new song instead of just a harmony to go along with something that already existed?  Could someone have written completely new words for the German tune instead of adapting St. Francis of Assisi's poem?  Sure, but it wouldn't be the song we know.  Can you imagine "Joy to the World" without Handel's music?  Or "What Child is This" to a tune other than "Greensleeves?"

Derivative works are just important in our history and culture as new works.  That doesn't mean anyone should automatically be free to use anything anyone else has already created.  But, it does mean we shouldn't dismiss someone's creation as not worthy of protection, support, or appreciation, simply because it builds on what came before it.


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