2 Nimmer on Copyright § 8.09

Summary

• [A] The Substantive Content of the Right
  • [1] A Superfluous Right?

    Section 106(2) of the Copyright Act grants to the copyright owner the exclusive right “to prepare derivative works based upon the copyrighted work.”1 This right may be thought to be completely superfluous because, under the Section 101 definition of a derivative work, it must be “based upon one or more pre-existing works.”2 Unless enough of the pre-existing work is contained in the later work to constitute the latter an infringement of the former,3 the latter, by definition, is not a derivative work.4