Is This Legal Alchemy? When a Copy of Another's Work May Become Transformative for Fair Use Purposes

摘要

Predicting a fair use outcome in U.S. copyright litigation is not for the faint of heart. There are no bright-line rules; instead, the Copyright Act calls for case-by-case analysis, directing courts to weigh four illustrative and non-exclusive factors.rnBut there is one guidepost that parties often overlook when attempting to determine if the defense of fair use applies to a claim of copyright infringement. When a new work makes "transformative" use of the original work, a court will almost always find the use fair." The transformative standard asks "whether the new work merely supersedes 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 . . . ."