Does copyright subsist in a derivative work based on public domain material?

Question

When a person holds a copyright to a work, they have the exclusive right to create a derivative work.

If a work is instead in the public domain, can a person modify that work and then copyright the result? Or do derivative works based on public domain source material also become public domain?

Answer 1

Yes, derivative works that are based on public domain works can be considered distinctive from the original public domain work, and subject to a separate copyright protection.

See 17 USC § 103(b):

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

See also the discussion in the US Copyright Office's Compendium:

• § 311.2 "a registration for a derivative work does not cover any previously published material, previously registered material, or public domain material that appears in the derivative work"
• § 507.2 "Derivative works often contain previously published material, previously registered material, public domain material, or material owned by a third party because by definition they are based upon one or more preexisting works. If a derivative work contains an appreciable amount of unclaimable material, the applicant generally should limit the claim to the new material that the author contributed to the work, and the unclaimable material should be excluded from the claim"

Answer 2

Yes, but only in the new parts

Say I write a story about Robin Hoode, leader of a group of Notingham bandits. I use a public domain character older than Copyright, I can not claim copyright in those parts.

BUT, if my Robin Hoode is a one-eyed gruff guy with burn scars all over from being tortured by the executioner of Richard Neville, 16th Earl of Warwick, because he opposed Edward IV... That latter part is a new element, and that is under copyright.

This is based on 17 USC 103.