University of Southern California

Transforming the Fair Use Landscape by Defining the Transformative Factor

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Note by Laurie Tomassian
From Volume 90, Number 6 (September, 2017)

Fair use is a legal doctrine that is at once generous and parsimonious to our society’s innovators. The underlying function of fair use is to allow individuals to freely and legally use copyrighted works without obtaining permission from the work’s creator. It serves as an exception to the rights granted by copyright law, promoting society’s liberty of expression and innovation by allowing individuals to infringe on another’s creative efforts. Yet while those taking advantage of the fair use exception have much to gain from the doctrine, their experiences with fair use have been plagued with “pervasive and often crippling uncertainty.”

Since the doctrine’s judicial inception and subsequent statutory codification, courts have struggled to define and apply a uniform test assessing whether a copyrighted work’s use is protected under fair use. In the 1994 case Campbell v. Acuff-Rose Music, Inc., the Supreme Court introduced a new consideration into the fair use analysis: whether and to what extent a secondary use transforms the original copyrighted work. A use that sufficiently transformed the original work would weigh in favor of fair use; conversely, a use that failed to sufficiently transform the work would weigh against a fair use finding. This novel element of the fair use analysis left many questions unanswered. Where does the dividing line between a sufficiently transformative work and one that is not transformative enough lie? How much weight should this new inquiry hold in relation to the pre-existing statutory factors?

Answering such questions and clarifying the scope of the transformative inquiry has been a dominant focus of fair use case law since Campbell first introduced the transformative concept. It remains a prominent concern today, as courts stand sharply divided on how to resolve these questions. The Second Circuit has expanded to an unprecedented degree the definition of what makes a use sufficiently transformative, and has given it greater weight in the overall fair use analysis. The Seventh Circuit has criticized the Second Circuit for extending and prioritizing the reach of the transformative concept so far that it now has the potential to implicate copyright holders’ rights in a way neither contemplated nor intended by the drafters of the copyright statute. The Seventh Circuit contends that the fair use analysis should continue to be guided by the four statutory factors, none of which rely on the “transformative” question.

Despite the difficulty courts have faced in establishing a cohesive fair use doctrine, there is no denying “the function of fair use as integral to copyright’s objectives.” Fair use curtails the rights of some—copyright holders—to promote the rights of others: individuals seeking to exercise their First Amendment rights free from copyright law’s restrictions. The Second Circuit’s approach to the transformative question is more favorable to the copyright infringer, while the Seventh Circuit’s conservative approach is more protective of the copyright holder. A conclusive resolution of the ambiguities raised by the transformative question would provide the fair use doctrine with the tools necessary to best serve copyright law’s goal of supporting society’s innovators.

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