Journal of Intellectual Property Law


Courts have not reached consensus on how to apply the transformative use standard, which is a major factor in copyright law’s fair use analysis. Many courts implicitly rely on aesthetic theories for interpreting art when judging transformative use, but inconsistent application of these theories creates confusion about what constitutes transformative use. This Article analyzes the aesthetic theories, such as intentionalism and reader response theory, used by courts in landmark transformative use cases. The Article explores issues of unpredictability and subjectivity caused by the use of contradictory aesthetic theories. Ultimately, the Article proposes that courts adopt a moderate intentionalist framework for the transformative use analysis to standardize the inquiry and increase its objectivity.