What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law

ABSTRACT What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law The transformative test has risen to the top of the agenda of the copyright academic community with no less than two major studies of copyright fair use and the impact of the transformative test released in 2011 by Professors Matthew Sag and Neil Netanel that follow up on three recent comprehensive studies of copyright fair use published since 2008. The lessons learned from these two 2011 statistical studies are significant, in that both studies confirm the importance of the transformative test in terms of its application by the courts as the dominant test of fair use and in the observation that a finding of transformation in a copyright fair use claim virtually assures a finding that the use is fair. Nevertheless, the two studies and those that preceded them have not made an empirical study of the entire body of appellate law on transformation with the specific intent of demonstrating the meaning and operation of the term “transformative”—in other words, how the term works—illustrated by a synthesis of the data set of appellate cases. This article seeks to address that need. This article analyzes the entire body of United States Supreme Court and United States Courts of Appeals case law applying the transformative test in copyright fair uses cases to present two points: first, that the transformative test modifies the first sentence (sometimes referred to as the preamble) of 17 U.S.C. § 107—in particular, the terms, “the fair use of a copyrighted work”—rather than simply factor one of the four factor test. Second, the implementation of the transformative test by the courts indicates that the courts are to consider transformations in the content, context, and the predominant purpose of the original work and whether the alleged fair use changes the content, context, or predominant purpose in a manner that furthers the public policies reflected in the first sentence of section 107, namely the furtherance of the progress of the arts and the promotion of the creation of new, original expression. The transformative test has changed copyright law, and it has become the defining standard for fair use. My conclusions are that the data set of cases applying the transformative test to concrete legal situations producing final judgments in the cases highlights the importance of a change in the predominant purpose of the work rather than simply a change in the character (the form, the contents) of the work. It is evident from the record of cases that the courts take the “purpose” part of the analysis very seriously, for all of the approved fair uses in the appellate cases involved a change in the predominant purpose for the use of the work. Even if the works were not changed in form, function, or genre, the fair use works were transformed in predominant purpose either through alteration of the contents, or recontextualization of the copied material, or by the addition of significant creative expression so that the predominant purpose of the new work was significantly different from the original work. Non-alteration of the contents and expression of artistic and literary works still can be justified as fair use, but the function and purpose of the original works must be changed in the second works in a manner that fulfills fair use objectives that promote the progress of the arts and the creation of new, original expression that benefits the public, namely through research, comment and criticism, educational, archival, or historical-referential uses. Copyright law seeks first to promote new, original expression in the arts and literature, and second to allow other public interest activities such as education, research, archiving, news reporting, and comment and criticism of existing works. Transformation requires the copier to fulfill these objectives. The duplication of works just to show off their same creative, artistic, or literary virtues in a new time, a new place, a new mode or medium of communication, or for a new audience does not fulfill the goals of copyright. No new and original expression results from simple replication of the same communication and expression found in the original. The derivative works doctrine gives those rights to the original author or artist, not to the public at large. The lessons of the transformative test for those engaged in creative, artistic, or literary pursuits may be summed up in the following: if you copy an original work, use it for a different purpose than the purpose for which the original work was created. Modify the contents, function, and meaning of the original work through alteration of the original expression or the addition of significant new expression. Otherwise, you are making an unauthorized exploitation of the creative expression of the work for exactly the same reasons and purposes that the original author or artist created the work, and you are depriving the original author or artist of the derivative works right guaranteed by copyright