One of the most important questions in applying the fair use doctrine is whether the alleged infringer’s use of the copyrighted work was transformative. This means that the new work has significantly changed the appearance or nature of the copyrighted work. If the use is transformative, this does not necessarily mean that a fair use defense will succeed, but it will weigh heavily in favor of the defendant in an infringement lawsuit.
The transformative use concept arose from a 1994 decision by the U.S. Supreme Court. In Campbell v. Acuff-Rose Music, the Court focused not only on the small quantity taken from the copyrighted work but also on the transformative nature of the defendant’s use. The Court was persuaded that no infringement occurred because the defendant added a new meaning and message rather than simply superseding the original work. This meant that the new work likely would not affect the market for the original work, so the copyright owner would not suffer financial harm. The standard for determining whether a type of use is transformative remains blurry, but courts have provided some examples of works that meet or fail this test.
Examples of Meeting the Transformative Use Test
A court found that using magazine covers in a biography of an artist did not violate the copyright of the magazine publisher when the magazines were out of print, and the biography copied nothing from the magazines except the covers. Similarly, using a seven-second clip from a TV show in a musical was transformative because it was used for biographical purposes to document the fact of the appearance. The content of the TV episode was immaterial to the musical, so it did not harm the copyright owners of the show. The use of three scenes from a pornographic film in a biographical film was considered transformative because the biographical film was not pornographic and was not aimed toward the same audience as the pornographic film.
Parodies often are considered transformative use. A court ruled that a movie company was shielded by fair use when it parodied a famous Annie Leibovitz photo for Vanity Fair in a photo promoting an actor. However, this doctrine does not require the new work to comment on the original work or popular culture. Another court allowed legal databases to offer legal briefs for searchable use. It held that use for research was fundamentally different from the original use of the briefs in representing clients. Also, libraries were permitted to provide their books to be scanned by Google because the libraries used the scans to preserve the books, create a full-text search engine, and allow disabled people who could not read print versions of the works to read electronic versions. These uses were considered transformative.
Some entities, known as “copyright trolls,” buy copyrights and then sue others for infringing on them, without ever using their rights. Courts may be likely to find that a use is transformative when the defendant used part of a work owned by a copyright troll for an educational or news-related purpose. The copyright troll does not suffer any losses in these situations because they are not in the field of news or education.
Examples of Failing the Transformative Use Test
While parodies are transformative, satires often are not. A federal court ruled that the transformative use doctrine did not apply to an imitation of a Dr. Seuss book that told the story of the O.J. Simpson murder trial. This was because the book simply borrowed the Dr. Seuss characters and style for commercial use and did not parody the original work.
Posting a copyrighted work on social media does not automatically qualify as a transformative use, even though posting on social media promotes comment and criticism. A court rejected this argument when it was raised by a TV network that posted a famous photo of firefighters raising a flag at the 9/11 Ground Zero site in New York City.
Even if the use is slightly transformative, this may not be enough to pass the test, and it probably will not support a fair use defense. A court ruled that a Harry Potter encyclopedia infringed on the Harry Potter copyright because it used substantial passages of text from the Harry Potter books. It acknowledged that compiling terms from the series into a single volume was slightly transformative, but this did not outweigh the substantial amount of copying that occurred.