What is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law

Abstract

Two recent statistical studies confirm that a court finding of “transformation” in a copyright fair use claim virtually assures a finding that the use is fair. This Article analyzes the entire body of United States Supreme Court and United States Courts of Appeals case law applying the transformative test in copyright fair use cases to present two points: first, that the transformative test modifies the first sentence of 17 U.S.C. § 107 — in particular, the terms, “the fair use of a copyrighted work” — rather than simply factor one of the four-factor test; second, in implementing the transformative test, courts are to consider whether the alleged fair use changes the content, context, or predominant purpose in a manner that furthers the public policies reflected in the first sentence of section 107; namely, the furtherance of the progress of the arts and the promotion of the creation of new, original expression. The lessons of the transformative test for those engaged in creative, artistic, or literary pursuits may be summed up in the following: if you copy an original work, use it for a different purpose than the purpose for which the original work was created.

Keywords: copyright, transformative, transformation, transformative test, predominant purpose, fair use, explanatory synthesis