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

35 Pages Posted: 23 Jan 2012

See all articles by Jason M. Nolan

Jason M. Nolan

Nolan IP Law; CUA Columbus School of Law; North Carolina State University; Saint Lawrence University

Date Written: July 1, 2011

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

Suggested Citation

Nolan, Jason M., The Role of Transformative Use: Revisiting the Fourth Circuit’s Fair Use Opinions in Bouchat v. Baltimore Ravens (July 1, 2011). Virginia Journal of Law and Technology, Vol. 16, No. 4, p. 539, 2011, Available at SSRN: https://ssrn.com/abstract=1989615

Jason M. Nolan (Contact Author)

Nolan IP Law ( email )

Boynton Beach, FL
United States

HOME PAGE: http://nolaniplaw.com

CUA Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
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North Carolina State University ( email )

Raleigh, NC 27695-8203
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Saint Lawrence University ( email )

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Canton, NY 13617
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