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Since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. For a time, moreover, courts’ characterization of uses as “transformative” seemed ever more generous (if not in some instances credulous).

Lately, however, the fair use pendulum’s outward swing may have arrested, as courts express greater skepticism concerning what uses actually “transform” content copied into new works or repurposed into copyright-voracious systems. As a result, courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The restored prominence of the fourth factor should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts will need not only to continue to refine their appreciation of a work’s markets, but also to expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of “the value of the copyrighted work” identifies an independent kind of harm, and entails considerations distinct from market substitution. Those include creators’ economic and moral interests in being recognized as the authors of the copied works.


Intellectual Property Law | Law