R. Anthony Reese, Transformativeness and the Derivative Work Right, 31 Colum. J.L. & Arts 101 (2008).
Copyright law grants copyright owners certain exclusive rights in their works, but those rights are expressly limited by the fair use doctrine: any use of a work that qualifies as a fair use does not infringe on the work’s copyright. In 1994, in Campbell v. Acuff-Rose Music, Inc., the Supreme Court announced that an essential part of the inquiry into whether a particular use is fair is determining whether the use is “transformative,” and that transformative uses are more likely to be fair uses.
The rise of transformativeness as an explicit, important aspect of fair use analysis has potential implications for the copyright owner’s exclusive statutory right to prepare derivative works based on her copyrighted work, since derivative works seem, by definition, to involve some transformation of the underlying work. Commentators have therefore worried that the emphasis that the Supreme Court placed on transformativeness in fair use analysis will affect the scope of the copyright owner’s right to control forms in which her work is transformed.
This Essay explores the nature of the relationship between the derivative work right and the fair-use inquiry into transformativeness by examining all published circuit court opinions (41 published opinions in 37 cases) between the Supreme Court’s decision in Campbell and the end of 2007 that apply the statutory fair use analysis and offer some discussion of fair use transformativeness, or the derivative work right, or both. The Essay draws two conclusions from the cases. First, the courts have not viewed the preparation of any derivative work as necessarily transformative, and therefore the preparation of a derivative work is not in itself necessarily more likely (given the favored status of transformative uses) to constitute fair use. Second, appellate courts have not viewed the preparation of a derivative work — or indeed any transformation or alteration of a work’s content — as necessary to a finding that a defendant’s use is transformative, but have instead focused on whether the purpose of the defendant’s use is transformative.