Is Transformative Use Eating the World?

67 Pages Posted: 1 Mar 2019 Last revised: 31 Mar 2020

See all articles by Clark D. Asay

Clark D. Asay

Brigham Young University - J. Reuben Clark Law School

Arielle Sloan

affiliation not provided to SSRN

Dean Sobczak

affiliation not provided to SSRN

Date Written: February 11, 2019

Abstract

Fair use is copyright law’s most important defense to claims of copyright infringement. This defense allows courts to relax copyright law’s application when courts believe doing so will promote creativity more than harm it. As the U.S. Supreme Court has said, without the fair use defense, copyright law would often “stifle the very creativity [it] is designed to foster.”

In today’s world, whether use of a copyrighted work is “transformative” has become a central question within the fair use test. The Supreme Court first endorsed the transformative use term in its 1994 Campbell v. Acuff-Rose Music, Inc. decision. Since then, lower courts have increasingly utilized the transformative use doctrine in fair use case law. In fact, in response to the transformative use doctrine’s seeming hegemony, commentators and some courts have recently called for a scaling back of the transformative use concept. So far, the Supreme Court has yet to respond. But growing divergences in transformative use approaches may eventually attract its attention.

But what is the actual state of the transformative use doctrine? Some previous scholars have empirically examined the fair use defense, including the transformative use doctrine’s role in fair use case law. But few have focused specifically on empirically assessing the transformative use doctrine in much depth. This Article does so by collecting data from all district and appellate court fair use opinions between 1991, when the transformative use term first made its appearance in the case law, and 2017. These data include how frequently courts apply the doctrine, how often they deem a use transformative, and the win rates for transformative users. The data also cover which types of uses courts are most likely to find transformative, what sources courts rely on in defining and applying the doctrine, and how frequently the transformative use doctrine bleeds into and influences other parts of the fair use test. Overall, the data suggest that the transformative use doctrine is, in fact, eating the world of fair use.

This Article concludes by analyzing some possible implications of the findings, including the argument that, going forward, courts should rely even more on the transformative use doctrine in their fair use opinions, not less.

Keywords: copyright, fair use, transformative use, intellectual property

Suggested Citation

Asay, Clark D. and Sloan, Arielle and Sobczak, Dean, Is Transformative Use Eating the World? (February 11, 2019). 61 Boston College Law Review 905 (2020), Available at SSRN: https://ssrn.com/abstract=3332682 or http://dx.doi.org/10.2139/ssrn.3332682

Clark D. Asay (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

540 JRCB
Brigham Young University
Provo, UT 84602
United States

Arielle Sloan

affiliation not provided to SSRN

Dean Sobczak

affiliation not provided to SSRN

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