Transformative User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?

In the United States, the line between the type and level of transformation required for a copyrightable derivative work and that required to constitute fair use has not been drawn clearly. With the rise of user-generated content, this question (which arises in two distinct copyright contexts) has become even more important. At the same time, copyright law has generally shied away from defining authorship as a legal concept, preferring instead to develop and rely on the related (but not identical) concept of originality. This has resulted in a low copyrightability threshold that does not adequately account for the fact that most creative works in some way rely on and build upon existing works that often were created by another person and are protected by copyright law. This Article examines the consequences of such vagueness for user-generated content in an international and comparative context. Taking the U.S. position as a starting point, it examines the state of the law in other common law jurisdictions, including the United Kingdom, Australia, and Canada, and considers whether the legal rules in all these jurisdictions\u27 treatment of derivative works and fair use comport with the international treaty framework and related norms. The Article also discusses the ramifications of recent U.S. judicial applications of transformativeness in both the fair use and derivative works contexts, and proposes a clearer, more distinctive set of criteria that should serve to clarify the distinctions between these concepts, and that will also legally recognize the existence of authorship in transformative user-generated content