Perhaps the most widely known, yet misunderstood aspect of copyright law is the concept of “fair use.” Consider, for example, the misapprehension that copying for educational purposes is always fair use. If this were true, there would be no incentive for any educational publishers to create and publish textbooks.
Fair use originated as a judicially created doctrine that permitted an accused infringer to use copyrightable material without the consent of the copyright owner. The concept was already fairly engrained in English jurisprudence by the time the first U.S. Copyright Act was enacted in 1790. While the doctrine has existed in American jurisprudence in one form or another since then, it was codified as a statute with the enactment of the Copyright Act of 1976.
The statute now recognizes fair use “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”, and provides four factors for assessing whether a use is a “fair use”: “(1) the purpose or character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”
Unfortunately, the statute does not provide any clear distinction between fair use and infringement. The task of assessing a fair use, according to the Supreme Court, “is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Moreover, performing a fair use analysis is hardly a trivial matter. Perhaps the best thing that can be said of the fair use factors is that they don’t translate easily to real-world situations, particularly when dealing with works on the Internet. Further complicating matters is the fact that fair use is not a right, but rather, remains a defense to be asserted in an action for copyright infringement.
One aspect of the fair use test receiving judicial attention recently is that of “transformation.” This concept was recognized by the U.S. Supreme Court in a case involving the rap group 2 Live Crew and their satire on the famous Roy Orbison song, “Oh, Pretty Woman.” After an initial finding of fair use, the case was appealed. The Supreme Court, noting the origins of fair use, observed that “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”
The key to determining whether there has been a transformation, according to the Supreme Court, is to determine “whether the new work merely ‘supersede[s] the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’ Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be significance of other facts, like commercialism, that may weigh against a finding of fair use.”
More recently, the concept of transformation has continued to evolve. Opinions issued in two recent cases arguably extend the concept of transformation.
One of the cases involves photographer Patrick Cariou’s claims of copyright infringement asserted against appropriation artist Richard Prince. Prince was originally found liable for infringement, but on appeal, the U.S. Second Circuit Court of Appeals reversed in part, holding instead that Prince’s artwork did not need to comment on the original or its author to be considered transformative. The Second Circuit ultimately determined that fair use applied to most of Cariou’s claims.
In another case, artist Dereck Selzter sued the band Green Day and others for using a modified version of one of Seltzer’s drawings, named Scream Icon, in a music video. Green Day prevailed on fair use grounds. On appeal, the U.S. Ninth Circuit Court of Appeals affirmed, holding that the image in the music video was transformative: “With the spray-painted cross, in the context of a song about the hypocrisy of religion, surrounded by religious iconography, [Green Day’s] video backdrop using Scream Icon conveys ‘new information, new aesthetics, new insights and understandings’ that are plainly distinct from those of the original piece.”
Ultimately, the subjective nature of the concept of transformation is likely to produce more questions than answers. Rather than moving in the direction of a bright-line test, the concept of transformation keeps authors, artists and lawyers alike firmly planted in a world where there can be no clear test, and where the facts of each case will need to be evaluated to determine whether a particular use constitutes a fair use. If the history of the concept is any indication, it is apparent that the concept of fair use will continue to evolve, and continue to be both a blessing and a curse for those who create and use copyrightable content.
Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Florida.
By Samuel Lewis
Feldman Gale, P.A.
2 S. Biscayne Blvd., 30th Floor
Miami, FL 33131
South Florida Legal Guide 2015 Edition