The Role of Transformative Use: Revisiting the Fourth Circuit’s Fair Use Opinions in Bouchat v. Baltimore Ravens

Abstract

The Fourth Circuit opinions in Bouchat v. Baltimore Ravens illustrate the important role of the doctrine of transformative use in copyright fair use. A secondary use of a copyrighted work is transformative if the work was employed in a different manner or for a different purpose. The majority opinion found the use of plaintiff’s work in documentary films of the Ravens to be not transformative and a copyright infringement, whereas the dissenting and district court judges found the use to be transformative and a fair use.

To determine which opinion is more persuasive, this article reviews the history of transformative use, its application in recent caselaw, and two alternative fair use tests proposed by copyright scholars. This article concludes that Bouchat was decided incorrectly because the dissenting opinion properly characterized the plaintiff’s work as a historical artifact, which the defendants used out of necessity in order to create accurate documentaries.

Keywords: Copyright, Fair Use, Transformative Use