Overview[edit | edit source]

"The goal of copyright, to promote science and the useful acts, is generally furthered by the creation of transformative works."[1] For this reason, "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."[2]

In general, if the new work "merely supersedes the objects of the original creation,"[3] it is not transformative, but if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message," it is transformative.[4] Transformative uses add "new information, new aesthetics, new insights, and new understandings."[5] Such uses may include criticizing the copyrighted work, "exposing the character of the original author, proving a fact," or representing the original work in order to defend or rebut it.[6]

While parody is one form of commentary that may qualify as transformative, transformativeness is not limit to parody.[7] Nonparodic, creative reworkings can be transformative; leeway to artists is granted not because they assault the original head-on, but because they have a genuine creative rationale for their uses.[8] In Blanch, Jeff Koons copied part of a fashion photograph by Andrea Blanch.[9] Koons explained that “he intended to comment on the ways in which some of our most basic appetites — for food, play, and sex — are mediated by popular images.”[10] The court concluded that his use of Blanch’s photograph was transformative because Koons used Blanch’s photograph not simply to repackage it, but as “raw material” to create a new work with a different meaning and message.[11] The criticism was neither parodic nor specific to Blanch’s photograph, but it was a new message; that was sufficient.

The fair use standard is whether a transformative character “may reasonably be perceived.”[12] "A court is not required to do what literary critics cannot and put the final interpretive stamp on a work. We expect disagreement about the meaning of works, both original and critical, and we do not hold protection hostage to conveying a transformative meaning to a majority."[13]

References[edit | edit source]

  1. Campbell v. Acuff-Rose Music, Inc., 510 U.S.. 569, 579 (1994).
  2. Id.
  3. Folsom v. Marsh, 9 F. Cas. 342, 348 (D. Mass. 1841) (Story, J.).
  4. Campbell, 510 U.S. at 586.
  5. Blanch v. Koons, 467 F.3d 244, 251-52 (2d Cir. 2006).
  6. See Harper & Row Publishers, Inc. v. Nation Enters, Inc., 471 U.S. 539, 564 (1985) (noting that the scope of fair use is narrower with respect to unpublished works because the author's right to control the first public appearance of his work weighs against the use of his work before its release).
  7. See Campbell, 510 U.S. at 579.
  8. See Blanch, 467 F.3d at 254-55.
  9. Id. at 247.
  10. Id. (internal citation omitted).
  11. Id. at 253.
  12. Campbell, 510 U.S. at 582.
  13. Cf. Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 801 (9th Cir. 2003) ("While individuals may disagree on the success or extent of a parody, parodic elements in a work will often justify fair use protection. . . . Use of surveys in assessing parody would allow majorities to determine the parodic nature of a work and possibly silence artistic creativity. Allowing majorities to determine whether a work is a parody would be greatly at odds with the purpose of the fair use exception and the Copyright Act.").
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