Fair Use in the United States: Transformed, Deformed, Reformed?

30 Pages Posted: 24 Jul 2020

See all articles by Jane Ginsburg

Jane Ginsburg

Columbia University - Law School

Multiple version iconThere are 2 versions of this paper

Date Written: March 2020

Abstract

Since the United States Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor, “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth, withered into restatements of the first.

Lately, however, courts are expressing greater scepticism concerning what uses actually “transform” the original content. As a result, courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The article concludes with some suggestions for rebalancing the factors

Suggested Citation

Ginsburg, Jane, Fair Use in the United States: Transformed, Deformed, Reformed? (March 2020). Singapore Journal of Legal Studies, Mar. 2020, pp 265-294, Available at SSRN: https://ssrn.com/abstract=3654018

Jane Ginsburg (Contact Author)

Columbia University - Law School ( email )

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