Basis
Like most of the modern fair use doctrine, the doctrine of transformation was heavily influenced by the 1841 circuit court case '' Folsom v. Marsh''. In that case, Justice Story ruled thatif omeonethus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.The standard of "supersed ngthe use of the original work" would be widely cited as a standard for the degree to which a work was transformative when fair use had become more clearly fixed as a legal principle. In the
Under the first of the four 107 factors, "the purpose and character of the use, including whether such use is of a commercial nature ...," the inquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.''Campbell'' is important in large part because of this statement, ordering that commerciality should be given less weight in fair-use determinations and transformation great weight.
Application
There is no "bright line test" to determine whether one work supersedes the purpose of another; like the determination of fair use generally, it involves significant judgment calls. However, there is substantial precedent that clarifies the nature of transformation in law. Generally, use of a work to comment on the work itself somehow will qualify as transformative. Quoting portions of a work to criticize it, as in a book review, is transformative. Likewise, parody is transformative – repurposing a work to mock the work itself or the principles the work represents serves a very different purpose from that of the original work. Repurposing a work to aid identification of the base work is also generally transformative. In '' Kelly v. Arriba Soft Corp.'' and '' Perfect 10 v. Google'', the respective courts held that the creation and use ofExamples
''Campbell''
Transformativeness is a crucial factor in current legal analysis of derivative works largely as a result of the Supreme Court's 1994 decision in '' Campbell v. Acuff-Rose Music, Inc.'' The Court's opinion emphasized the importance of transformativeness in itsLeval article
The modern emphasis of transformativeness in fair use analysis stems from a 1990 article by Judge Pierre N. Leval in the ''''Arriba Soft'', ''Perfect 10'', and ''Authors Guild''
The concept of transformativeness initially developed in relation to fair use of traditional works: translations of literary works, adaptations of musical works, and changes of medium for pictorial works. But in the 21st century, courts have also applied the "in a different manner or for a different purpose" rationale in Internet and computer-related works. In such cases, as illustrated by '' Kelly v. Arriba Soft Corporation'' '' Perfect 10, Inc. v. Amazon.com, Inc.'', and '' Authors Guild, Inc. v. Google, Inc.'', the courts find a derivative-work use (such as that of thumbnails in an image search engine, for indexing purposes) or a copy of text (to facilitate key-word indexing) transformative because it provides an added benefit to the public, which was not previously available and might remain unavailable without the derivative or secondary use.Ninth Circuit decisions
The Ninth Circuit explained this in the ''Perfect 10'' case:Google's use of thumbnails is highly transformative. In ''Kelly'' we concluded that Arriba's use of thumbnails was transformative because "Arriba's use of the images served a different function than Kelly's use—improving access to information on the Internet versus artistic expression." Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. Just as a "parody has an obvious claim to transformative value" because "it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one," a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.Given the fact that the use was highly transformative, the court turned to the issue of striking a balance between the value to the public of the transformative use and the degree to which Google's use was commercial and superseded that of the author. It concluded that it was obliged to strike a balance:
In conducting our case-specific analysis of fair use in light of the purposes of copyright, we must weigh Google's superseding and commercial uses of thumbnail images against Google's significant transformative use, as well as the extent to which Google's search engine promotes the purposes of copyright and serves the interests of the public. Although the district court acknowledged the "truism that search engines such as Google Image Search provide great value to the public," the district court did not expressly consider whether this value outweighed the significance of Google's superseding use or the commercial nature of Google's use. The Supreme Court, however, has directed us to be mindful of the extent to which a use promotes the purposes of copyright and serves the interests of the public.It then concluded that the public benefit had the greater weight here:
We conclude that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case. . . . We are also mindful of the Supreme Court's direction that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.The Ninth Circuit's treatment of transformativeness and fair use in the ''Arriba Soft'' and ''Perfect 10'' cases illustrates different data points on the copyright infringement spectrum, at least with respect to transformativeness and fair use. ''Arriba Soft'' was a relatively polar case. The harm to Kelly, the copyright owner, was negligible; it was hardly more than his hurt feelings. Thus, the Ninth Circuit said in its opinion that "Arriba's creation and use of the thumbnails he derivative workdoes not harm the market for or value of Kelly's images." On the other hand, the court found that Arriba's use benefited the public: "Arriba's use of the images serves a different function than Kelly' s use—improving access to information on the internet versus artistic expression." The balance thus tilted strongly in Arriba's favor. This led the Ninth Circuit to be the first court to make the equation ''highly beneficial to public = transformative'', and as the Supreme Court explained in ''Campbell'', the more transformative a derivative use the more likely the use is to be a fair use. The ''Campbell'' Court recognized that the balance may not always be one-sided, as it was in ''Campbell'' itself and in ''Arriba Soft''. In the ''Perfect 10'' case the interests were more evenly balanced, for the first time in a derivative work case involving new information technology. Both Google and Perfect 10 seemed to have legitimate interests at stake and support for their respective positions. Thus, there was a finding that "Google's wide-ranging use of thumbnails is highly transformative: their creation and display is designed to, and does, display visual search results quickly and efficiently to users of Google Image Search." But Google's use had some commercial aspects and was claimed to impair P10's commercial interests. Yet, on balance the Ninth Circuit found that the transformativeness outweighed the other fair use factors because "Google has provided a significant benefit to the public" in facilitating image searches by means of thumbnail images.
Second Circuit—''Authors Guild''
Still another data point is provided in the Second Circuit's 2015 decision in '' Authors Guild, Inc. v. Google, Inc.'' The court's opinion, written by Judge Pierre Leval, a highly influential scholar of fair use, explains how Google's copying entire texts, to digitalize them so that the public (users) can search for key words and see displays of snippets of the text surrounding them, "is transformative within the meaning of ''Campbell''." He explains more specifically:Google's making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs' books without providing the public with a substantial substitute for matter protected by the Plaintiffs' copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google's provision of the snippet function.Google's Library Project, which began in 2004, involves agreements between Google and a number of the world's major research libraries. Under these agreements, the libraries select books from their collections to submit to Google for inclusion in the project. Google makes a digital scan of each book, extracts a machine-readable text, and creates an index of the machine-readable text of each book. Since 2004, Google has scanned, rendered machine-readable, and indexed more than 20 million books, including both copyrighted works and works in the public domain. The vast majority of the books are non-fiction, and most are out of print. The digital corpus created by the scanning of these millions of books enables the Google Books search engine. Members of the public who access the Google Books website can enter search words or terms of their own choice, receiving in response a list of all books in the database in which those terms appear, as well as the number of times the term appears in each book. The court stated: "The search tool permits a researcher to identify those books, out of millions, that do, as well as those that do not, use the terms selected by the researcher. Google notes that this identifying information instantaneously supplied would otherwise not be obtainable in lifetimes of searching." The search engine also makes possible new forms of research, known as "
see no reason in this case why Google's overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally 0done commercially for profit.Google made an unauthorized digital copy of the entire book, but it did not reveal that digital copy to the public. The copy in Google's files was made available to the public only to enable the search functions to reveal limited, important information about the books. Therefore, the court said, "not only is the copying of the totality of the original reasonably appropriate to Google's transformative purpose, it is literally necessary to achieve that purpose." The reason is that if "Google copied less than the totality of the originals, its search function could not advise searchers reliably whether their searched term appears in a book." The ability to users to obtain snippets of a book by using the search function did not create a market substitute for the original book, thereby depriving the author of her market:
Snippet view, at best and after a large commitment of manpower, produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book. This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue.The court summarized its analysis of transformativeness by concluding:
In sum, we conclude that . . . Google's unauthorized digitizing of copyright-protected works, creation of a search functionality, and display of snippets from those works are non-infringing fair uses. The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals. Google's commercial nature and profit motivation do not justify denial of fair use.
Pop-ups
The use ofPhotos of sculptures
On February 25, 2010, theSee also
* Appropriation art * Organization for Transformative Works * Legal issues with fan fictionReferences
{{DEFAULTSORT:Transformative use Fair use United States copyright law