Transformative Use and Cognizable Harm
Vanderbilt Journal of Entertainment and Technology Law, Forthcoming
49 Pages Posted: 21 Jan 2010 Last revised: 29 Mar 2010
Date Written: January 20, 2010
In recent years, the question of whether the unauthorized use of a copyrighted work is “transformative” has become a dominant consideration in determining whether the use is fair or unfair. As critics have pointed out, however, this emphasis on transformative use is both underinclusive and indeterminate of the range of uses that fall within the scope of the fair use privilege. Worse yet, efforts to define or apply the concept of transformative use (or to distinguish transformative fair uses from transformative uses that infringe the copyright owner’s exclusive right to prepare derivative works) often serve only to illuminate the concept’s malleability and to obscure the relevant policy considerations. Consistent with these critiques, I will argue that much of the current emphasis on transformative use is misguided, and that courts instead should focus the fair use inquiry on whether the defendant’s unauthorized use threatens cognizable harm to the copyright owner’s interest in exploiting her work. In resolving this question, it sometimes may be relevant to consider whether a use is transformative in terms of its content or purpose, but transformativeness should remain subsidiary to the broader inquiry into cognizability.
Keywords: copyright, fair use, transformative use, derivative works
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