Also known as: distinguishable variation · distinguishable · distinguishing cases
Written by attorneys · grounded in primary & secondary sources — see below
A standard of originality applicable to derivative works. The new work must contain creative changes that set it apart from the preexisting material on which it is based. Those changes must affect the work's expression rather than merely its ideas or unprotectable elements.
Dorothy Daniels creates a mezzotint of a public-domain painting. She adds original shading and tonal variations that depart from the source image. The resulting print qualifies for its own copyright because the added elements supply distinguishable variations in expression.
Edward Evans engraves a public-domain landscape. He introduces new cross-hatching and depth cues absent from the original. The engraving obtains copyright protection because those additions constitute distinguishable variations in artistic expression.
Maria Morales arranges a public-domain folk melody for piano. She adds original harmonies and rhythmic alterations. The arrangement is copyrightable because the new expressive elements supply distinguishable variations from the underlying tune.
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Samuel Soto casts a public-domain statue but repositions the figure's arms and alters facial details. The new cast receives protection because the modifications create distinguishable variations in the sculptural expression.
The new work must incorporate original, creative changes that affect its expression. Mere reproduction or changes to unprotectable ideas do not suffice. Courts examine whether the variations are substantial enough to distinguish the derivative work from its source.
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Yes. A copyist's bad eyesight or an accidental shock may produce sufficiently distinguishable variations. Once discovered, the author may adopt the variation as original expression and obtain copyright protection.
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The copyright test focuses on creative expression and originality in a work. Entity-name statutes focus on whether proposed names differ on the secretary of state's records from existing names, without regard to creativity or market confusion.
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…judicial proceedings brought against her assailants. While there are similarities, critical aspects of that case make it wholly distinguishable from this one. First, in Cox Broadcasting , the victims name had been disclosed in the hearing where her assailants pleaded guilty; and, as we recognized, judicial records have always been…