Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation

62 Pages Posted: 22 May 2015

See all articles by Jacqueline D. Lipton

Jacqueline D. Lipton

University of Pittsburgh - School of Law

John Tehranian

Southwestern Law School

Date Written: October 24, 2014

Abstract

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work — work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement suits and potentially chill much creative activity. This Article examines the impact of copyright doctrine on remixes with an emphasis on crowdsourced projects.

Such an analysis is particularly salient at this juncture since consumers are neither as passive nor as isolated as they once were. Specifically, large-scale crowdsourced projects raise issues relating to copyright and fair use on a scope and scale never before imaginable. As such, this Article reflects on the particular problems raised by the growth of crowdsourced projects and how our copyright regime can best address them. We conclude that future legal developments will require a thoughtful and sophisticated balance to facilitate free speech, artistic expression, and commercial profit. To this end, we suggest a number of options for legal reform, including: (a) reworking the strict liability basis of copyright infringement for noncommercial works; (b) tempering damages awards for noncommercial or innocent infringement; (c) creating an “intermediate liability” regime that gives courts a middle ground between infringement and fair use; (d) developing clearer ex ante guidelines for fair use; and (e) reworking the statutory definition of “derivative work” to exclude noncommercial remixing activities. These reform proposals are particularly timely in light of the House Judiciary Committee’s on-going review of copyright law.

Suggested Citation

Lipton, Jacqueline Deborah and Tehranian, John, Derivative Works 2.0: Reconsidering Transformative Use in the Age of Crowdsourced Creation (October 24, 2014). Northwestern University Law Review, Vol. 109, No. 2, 2015; Southwestern Law School Research Paper No. 2015-13. Available at SSRN: https://ssrn.com/abstract=2514250

Jacqueline Deborah Lipton

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-383-3207 (Phone)

John Tehranian (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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