Fair Use: What Is Transformative?

In determining fair use, what makes the use of a copyrighted work "transformative"?

By , Attorney

Copyright law gives authors certain exclusive rights to their work. These rights include the exclusive right to reproduce or resell the work. However, the fair use doctrine, codified in federal law as 17 U.S. Code § 107, is a defense that allows an "infringer" to may make limited use of the original author's work without asking permission. Without the fair use doctrine, this would qualify as copyright infringement.

Courts will consider four primary factors in determining whether a particular use qualifies as "fair." One of the factors weighing in favor of finding fair use is when the use of the original material is "transformative." Transformative uses take the original copyrighted work and transform its appearance or nature to such a high degree that the use no longer qualifies as infringing. What exactly is transformative use, and when does it apply?

Example of Transformative Use

The transformative use doctrine is relatively new. In 1994, the U.S. Supreme Court reviewed a case involving a rap group, 2 Live Crew, in the case Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). The band had borrowed the opening musical tag and the words (but not the melody) from the first line of the song "Pretty Woman" ("Oh, pretty woman, walking down the street"). The rest of the lyrics and the music were different.

In a decision that surprised many in the copyright world, the Supreme Court ruled that the borrowing was fair use. Part of the decision was colored by the fact that so little material was borrowed. But the Supreme Court also added a new dimension to the fair use analysis. It focused on one of the four fair use factors, the purpose and character of the use, and emphasized that the most important aspect of the fair use analysis was whether the purpose and character of the use was "transformative."

In the 2 Live Crew case, the use of the lyrics was transformative because they poked fun at the norms of what was "pretty." The inquiry "focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is 'transformative,' altering the original with new expression, meaning, or message," Justice Souter wrote in the opinion. "The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." (The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher, who did not want "Pretty Woman" used in a rap song).

In the decades that have since passed, the standards of "transformative" have continued to evolve. Still, the status of a transformative work seems to be defined by two questions:

  • Has the material taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

Varieties of "Transformative" Fair Use

Below are summaries of select cases involving "transformative claims."

  • Library fair use (transformative): Libraries that provided a search engine company (Google) with books to scan were protected by fair use when the libraries later used the resulting digital scans for three purposes: preservation, a full-text search engine, and electronic access for disabled patrons who could not read the print versions. The three purposes for which the scans were used were considered transformative. The court also did not find any evidence of financial harm. Authors Guild v. Hathitrust, No. 1:11-cv-06351-HB (S.D.N.Y., October 10, 2012).
  • The Harry Potter encyclopedia (not transformative): Although the creation of a Harry Potter encyclopedia was determined to be "slightly transformative" (because it made the Harry Potter terms and lexicons available in one volume), this transformative quality was not enough to justify a fair use defense. An important factor in the court's decision was the extensive verbatim use of text from the Harry Potter books. Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008).
  • Monster Movie art (transformative): A publisher of monster magazines from the 1950s, '60s, and '70s sued the creator and publisher of a book, Famous Monster Movie Art of Basil Gogos. (Gogos created covers for the magazines.) The book publisher had obtained licenses from the artist directly, but not from the magazine publisher, who claimed copyright under work-made-for-hire principles. The district court determined that the use was transformative. The use was for a biography/retrospective of the artist, not simply a series of covers of magazines devoted to movie monsters. In addition, the magazines were no longer in print, and the covers amounted to only one page of the magazine, not the "heart" of the magazine. Warren Publishing Co. v. Spurlock d/b/a Vanguard Productions, 645 F. Supp. 2d 402, (E.D.P.A., 2009).
  • Ed Sullivan clip (transformative): A seven-second clip from the Ed Sullivan TV show was used in a staged musical history ("The Jersey Boys") based on the career of the musical group the Four Seasons. The use was transformative ("Being selected by Ed Sullivan to perform on his show was evidence of the band's enduring prominence in American music," the judge wrote in the ruling. "By using it as a biographical anchor, [the defendant] put the clip to its own transformative ends.") Further, the use caused no financial harm to the copyright owners of the show. SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013).
  • Prince collages (transformative): The painter, Richard Prince, created a collage using—in one collage—35 images from a photographer's book. The artist also used 28 of the photos in 29 additional paintings. In some instances, the full photograph was used while in others, only the main subject of the photo was used. The Second Circuit Court of Appeals held that to qualify as a transformative use, Prince's work did not have to comment on the original photographer's work (or on popular culture). The Court of Appeals concluded that 25 of Prince's artworks qualified as fair use and remanded the case to determine the status of the remaining five artworks. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
  • Nonprofit immigration use (transformative): A nonprofit organization posted a newspaper article about police discrimination on its website. The newspaper assigned its right in the article to a third party, Righthaven, who filed the lawsuit. The court's reasoning was influenced by the fact that Righthaven had acquired the copyright and was not in the newspaper business (it appeared to be in the "litigation business"). For that reason, the court reasoned that the nonprofit's use was transformative because its purpose was to educate the public about immigration issues, whereas Righthaven had no such purpose for the article (because it was not in the news business). And also, because Righthaven was not in the news business, it could show no harm from the defendant's dissemination of the article. Righthaven LL v. Jama, No 2:2010-cv-01322, 2011 WL 1541613 (D. Nev. April. 22, 2011).
  • Naked Demi (transformative): A movie company used a photo of a naked pregnant woman onto which it superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. The movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998).
  • Dr. Seuss (not transformative): An author mimicked the style of a Dr. Seuss book while retelling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. The author's work was, in the eyes of the court, nontransformative and commercial. Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
  • Posting on social media (not transformative): In an anniversary tribute on Facebook, a Fox news producer posted an iconic unmodified photo of firefighters hoisting a flag after the 9/11 bombings ("Raising the Flag at Ground Zero"). The photo was juxtaposed with an image of soldiers raising the flag at Iwo Jima and the addition of the caption #neverforget. After the photographer sued, Fox claimed fair use, arguing that posting on social media is by its nature transformative because such postings promote comment and criticism. The district court rejected the argument and held that the posting was not a fair use. North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC. 74 F.Supp.3d 605 (S.D.N.Y. 2015).
  • Court-filed briefs reproduced in legal database (transformative): In White v. West Publishing, the district court ruled that legal databases such as Westlaw and Lexis could incorporate legal briefs into their databases, as such searchable use of court-filed documents was transformative (and therefore excusable as a fair use). The use was transformative because the lawyers created the briefs to assist their clients, but the legal services were using the briefs as research tools. White v. West Publishing, 29 F.Supp.3d 396 (S.D.N.Y. 2014).
  • Recreating three scenes from Deep Throat (transformative). The recreation of three scenes from the film Deep Throat was held to be a fair use when made for a biographical film about actress Linda Lovelace. The court was persuaded by the fact that the recreated scenes were used in a nonpornographic film biography (with no nudity) about an actress who ultimately railed against pornography. This use illustrated a strong transformative purpose and demonstrated that the copyright owner of Deep Throat would be unlikely to lose revenue from this non-pornographic use. Arrow Productions, LTD v. The Weinstein Company LLC, No. 13 Civ. 5488 (S.D.N.Y. 2014).

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