Originally uploaded at SSRN.

Abstract

The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly fit into a number of recurring distinct patterns.

The analytic difficulty presented by the transformative use standard is that it is an ambiguous judicial construct layered on top of a pre-existing ambiguous and often criticized legislative construct in the Copyright Act. Section 107 codified the fair use doctrine with an illustrative list of uses which might be fair followed by four general factors to be examined when the fair use defense is raised by an alleged infringer. The determination of whether a particular use is transformative has been added to this multi-factored analysis. The challenge thus becomes relating this judicial construct to the statute’s factors in a meaningful way. Moreover, this standard’s relationship to other copyright law doctrines, especially the right to prepare derivative works, is not clear. After all, a derivative work by definition recasts, transforms, or adapts a preexisting work of authorship. Examining the vast case law in this area suggests initially that judicial results are largely, if not entirely, ad hoc and arbitrary. But lying beneath the chaos, as other scholars contend, is a taxonomy that brings some order.

This article’s effort to identify these underlying connections is not, however, simply an effort to produce structure for the sake of structure. The analytic struggle presented by copyright law is of fundamental importance to our jurisprudence more generally because it illustrates the continuing conflict between two competing constitutional doctrines: on one hand, protecting intellectual property and ownership rights as an incentive to create; and, on the other, protecting freedom of expression including a creator’s ability to build upon the works of others. The purpose of copyright is “to encourage people to devote themselves to intellectual and artistic creation” and the philosophy undergirding copyright is the belief that “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors.” At the same time, it has long been recognized that few things are “strictly new and original throughout” and that every work “in literature, science and art, borrows, and must necessarily borrow, and use much which was well known, and used before.” Hence, there is a delicate balance between protecting copyrighted materials and allowing others to build upon those protected works, and it is important to understand how the transformative use standard affects this balance.

This article first discusses fair use generally including Campbell v. Acuff-Rose Music and the evolution of the transformative use standard. Next it defines the transformative use standard and its relationship to the right to prepare derivative works, and then discusses a dozen categories and subcategories of transformative and non-transformative uses. In some of these categories, such as parody, uses out of context and appropriation art, it finds that a court’s analysis and discussion of whether an unauthorized reproduction of a copyrighted work is transformative performs an important role in explaining why that particular use is or is not a fair use. However, the article suggests that in the fair use categories listed in section 107’s preamble, which were well-established before Campbell v. Acuff-Rose was decided such as criticism, comment, news reporting and copying for educational and research purposes, it is unnecessary for courts to turn to the transformative use standard. When it is relatively clear that the challenged use fits within one of those well-established categories, it would be better for the courts to stick with a straight forward analysis using section 107’s four factors. This is preferable to trying to twist and turn the transformative use standard to accommodate and explain a challenged use. Otherwise, the transformative use standard will become more presumption-like, implicitly amending section 107. This would also be counter to the Supreme Court’s explicit rejection in Campbell v. Acuff-Rose of using presumptions in fair use analysis. Moreover, in view of the subtle distinction between some allegedly transformative uses and derivative works, the standard’s evolution into a presumption risks undermining the right to prepare derivative works. The standard should not be allowed to eviscerate this right. Like the old productive/nonproductive use distinction discussed by the Supreme Court in the venerable Sony/Betamax decision, analyzing whether a particular use is transformative should be a helpful but not determinative consideration in assessing fair use.

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