When is a summary a derivative work such that it needs the fair use defense to be legal? For example, consider the following:

Farm boy fights evil empire.

I don't think that this summary of the original Star Wars trilogy would count as a derivative work, since it it can be used to describe more works of fiction than just Star Wars. So, is a summary being specific enough that it only describe one specific work sufficient for it to a derivative work? Necessary but not sufficient? Or what? (Or if my question is meaningless/pointless, please explain why.)

NOTE: I am NOT asking about when a summary is infringing. I'm only asking when a summary is a derivative work, regardless of whether or not it's infringing.


Ultimately whether one work is derivative of another is a question of fact, and there is no absolute rule beyond taking it to a court. Many cases are clear. A Full translation is obviously a derivative work,

The definition in 17 USC 101 is:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

A mere description of a work, such as a one-paragraph summary, is probably not a derivative work, but as the summary gets longer and fuller, it starts to approach an "abridgment or condensation". One test is if the summery could reasonably replace the original, at least for some consumers. But there is no clear cut place to draw the line.

By the way, If something is a derivative work, it is infringing provided only that the original is in copyright and the creator of the derivative did not have permission from, the copyright holder on the original. Fair use may prevent an adverse judgement, but is still an infringement.

As the question referred to fair use, a strictly US legal concept, I am assuming US law here.

  • 2
    +1. It's not the main focus of this Q&A, but I'm going to nitpick a small part: Fair use is not an infringement. 17 USC 107 is fairly clear on that: "... the fair use of a copyrighted work ... is not an infringement of copyright."
    – DPenner1
    Nov 4 '20 at 6:07

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