DATE DOWNLOADED: Tue Nov 2 16:20:18 2021

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Matthew D. Bunker, Eroding Fair Use: The Transformative: Use Doctrine after Campbell,
7 COMM. L. & POL'y 1 (2002).

ALWD 6th ed.

Bunker, M. D., Eroding fair use: The transformative: Use doctrine after campbell,
7(1) Comm. L. & Pol'y 1 (2002).

APA 7th ed.

Bunker, M. D. (2002). Eroding fair use: The transformative: Use doctrine after
campbell. Communication Law and Policy, 7(1), 1-24.

Chicago 17th ed.

Matthew D. Bunker, "Eroding Fair Use: The Transformative: Use Doctrine after
Campbell," Communication Law and Policy 7, no. 1 (Winter 2002): 1-24

McGill Guide 9th ed.

Matthew D Bunker, "Eroding Fair Use: The Transformative: Use Doctrine after Campbell"
(2002) 7:1 Comm L & Pol'y 1.

AGLC 4th ed.

Matthew D Bunker, 'Eroding Fair Use: The Transformative: Use Doctrine after Campbell'
(2002) 7(1) Communication Law and Policy 1.

MLA 8th ed.

Bunker, Matthew D. "Eroding Fair Use: The Transformative: Use Doctrine after
Campbell." Communication Law and Policy, vol. 7, no. 1, Winter 2002, p. 1-24.
HeinOnline.

OSCOLA 4th ed.

Matthew D Bunker, 'Eroding Fair Use: The Transformative: Use Doctrine after Campbell'
(2002) 7 Comm L & Pol'y 1

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
COMMUNICATION LAW AND POLICY
Volume 7 Winter 2002 Number 1
Copyright © 2002 Lawrence Erlbaum Associates, Inc.

ERODING FAIR USE:

THE "TRANSFORMATIVE"
USE DOCTRINE AFTER CAMPBELL

MATTHEW D. BUNKER*

Fairuse doctrine in copyright law is undergoing a

subtle and insidiousshift. Fairuse, which began life as
a judge-made defense to copyright infringement, is now
one of the most important statutory limits on the
monopoly power of copyright owners to control the
dissemination of their works. After the United States
Supreme Court's 1994 decision in Campbell v.
Acuff-Rose Music, Inc., fair use analysis in lower courts
has become increasinglymonistic, focusing to a great
degree on whether the use in question was
"transformative." This article discusses the history of
fair use and explores how lower courts are interpreting
the Campbell decision to require transformation,a
strategy that tends to overprotect copyright owners at the
expense of the free flow of information.

Fair use doctrine in copyright law is undergoing a subtle and insid-

ious transformation. Fair use, which began life as a judge-made de-
fense to copyright infringement, is now codified in the 1976
Copyright Act as one of the most important limits on the monopoly of
copyright owners over the use of their copyrighted expression.1 The
fair use defense is seen as an equitable rule of reason, and includes a
number of statutory factors that allow courts to balance the interests
of the copyright owner against those of the putative fair user. The
major justification for the fair use doctrine is to prevent authors from
exercising absolute control over their creations, and to leave some

*Reese Phifer Professor of Journalism, University of Alabama.

117 U.S.C. § 107 (1994).

 7 COMM. L. & POL'Y 1 (2002)

breathing room for the unconsented dissemination of works that

will, presumably, prove socially beneficial. As the United States Su-
preme Court has noted numerous times, the entire scheme of copy-
right law is designed not to provide a private benefit or secure a
"natural right" for creators, but to benefit the public. 2 Fair use is one
means to assure reasonable dissemination of copyrighted works,
even without the copyright owner's consent.
In recent years, however, the fair use doctrine has undergone a
significant and dangerous shift. 3 After the U.S. Supreme Court's
1994 decision in Campbell v. Acuff-Rose Music, Inc.,4 fair use analy-
sis in lower courts has become increasingly monistic, often focusing
to a great degree on whether the use in question was
"transformative." Drawing upon an influential article in the Har-
vard Law Review, 5 the Supreme Court in Campbell defined a
"transformative" use as one that adds something new to the work
from which the borrowing was done, by altering it with new meaning
or message. The transformative use requirement is not one found
among the statutory fair use factors, and the Court acknowledged in
Campbell that a use need not be transformative to be fair.
Despite that caveat, the notion of transformative use has increas-
ingly been emphasized by lower courts in subsequent fair use cases.
Although there is undeniable intuitive appeal to the transformative
use requirement, it creates a number of serious problems for copy-
right doctrine. For one thing, lower courts have not always been able
to articulate clear criteria for what precisely constitutes a
transformative use. More fundamentally, the tendency of lower
courts since Campbell to emphasize transformative use may well
lead to overprotection of copyright holders at the expense of the free
flow of information in nontransformative contexts. By focusing pri-
marily on the quasi-moral issue as between the copyright owner and
the user-did the putative fair user engage in sufficient effort in re-
working the original material to be deemed worthy of a

2
See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429
(1984) ("[Copyright law is] intended to motivate the creative activity of authors ...
by provision of a special reward, and to allow public access to the products of their
genius after the limited period of exclusive control has expired.").
3
Only a few scholars have investigated this trend since Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569 (1994). See Diane Leenheer Zimmerman, TheMore Things
Change, the Less They Seem "Transformed": Some Reflections on Fair Use, 46 J.
COPYRIGHT Soc'Y 251 (1998); Jeremy Kudon, Note, Form Over Function:Expanding
the Transformative Use Test for Fair Use, 80 B.U. L. REV. 579 (2000).
4510 U.S. 569 (1994).
5
Pierre N. Leval, Commentary, Toward a FairUse Standard, 103 HARV. L. REV.
1105 (1990).
"TRANSFORMATIVE" USE DOCTRINE

transformative use finding?-courts may tend to lose sight of the

larger public interest at stake.
This article will first discuss the history of the transformative use
factor, culminating in its adoption in Campbell. Next, it will explore
subsequent lower court cases to determine how lower courts are in-
terpreting Campbell. The article will examine both how courts define
a "transformative" use and how heavily they weigh transformation
in the overall fair use calculus. Finally, the article will offer analysis
and concluding perspectives on the transformative use factor, sug-
gesting that its importance be minimized in fair use analysis.

ORIGINS OF TRANSFORMATIVE USE

The fair use doctrine in copyright law has a lengthy history. Eigh-
teenth-century English courts, shortly after the passage of the first
copyright act, the Statute of Anne, acknowledged a right of "fair
abridgment" of a copyrighted work. 6 U.S. courts later recognized the
doctrine, which came to be called "fair use," with perhaps the most
famous explication being provided by Justice Story in Folsom v.
Marsh in 1841. 7 As Justice Story articulated the doctrine:

In short, we must often, in deciding questions of this sort, look to the

nature and objects of the selections made, the quantity and value of the
materials used, and the degree in which the use may prejudice the sale,
or diminish the profits, or supersede the objects, of the original work.8

The fair use doctrine was eventually incorporated into statute

with the passage of the 1976 Copyright Act, and Story's summary
was still quite accurate. Under 17 U.S.C. § 106, copyright owners are
granted certain exclusive rights, including, depending on the type of
work, the right to reproduce, distribute copies, prepare derivative
works, perform and display the work. The Section 106 exclusive
rights, however, are "subject" to certain other provisions of the Act,
including the fair use provision found in Section 107. Section 107's
preamble notes certain approved purposes of fair use, "such as criti-
cism, comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research .... " Section 107 then

6
See Leval, supranote 5, at 1105; WILLIAM F. PATRY, THE FAIR USE PRIVILEGE IN
COPYRIGHT LAW 6-18 (2d ed. 1995).
79 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901).
8
Id. at 348.
 7 COMM. L. & POL'Y 1 (2002)

goes on to note the following nonexclusive factors that courts may

use to determine if a use is fair:

(1)the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes; (2) the na-
ture of the copyrighted work; (3) the amount and substantiality of the
portion used in relation to the copyrighted work as a whole; and (4) the
effect of the use upon the potential market for the copyrighted work.

The first factor-the "purpose and character of the use" factor-has

been the prime site for the infiltration of the "transformative use"
doctrine, although the doctrine has been considered in connection
with other statutory factors as well.
The extent to which a "transformative" requirement is part of the
history of fair use is somewhat controversial. Legal scholar Laura G.
Lape has noted the existence of at least the outlines of a "productive"
use factor, roughly synonymous with "transformative" use, in
19th-century fair use cases. 9 However, Professor Lape points out
that these early cases were often ambiguous. The cases were not, she
points out, "neatly subdivided into discussions of initial infringe-
ment liability and the defense of fair use. Rather, discussions of these
issues are blended, so that it is only with great care and some tenta-
tiveness that one can assert that a court, in a given portion of its
opinion, was discussing infringement or fair use." 10
Whatever its provenance, the productive use factor was first used in
a modern fair use case in the United States Court of Appeals for the
Ninth Circuit in a 1981 decision dealing with fair use in the context of
video cassette recorders. In that case, Universal City Studios, Inc. v.
Sony Corp. of America,11 the Ninth Circuit ruled that Sony was liable
for contributory copyright infringement for manufacturing video cas-
sette recorders that allowed consumers to make infringing copies of
copyrighted television programs. Considering the claim that VCR re-
cordings could be fair use, the Ninth Circuit ruled that "mere repro-
duction of a work in order to use it for its intrinsic purpose" was not a
fair use. 12 Only "productive uses," in which the user added some cre-
ative contribution, could be fair, the Ninth Circuit opined.
On appeal, the U.S. Supreme Court reversed the Ninth Circuit, in
part based upon the Ninth Circuit's insistence that fair uses must be
9
Laura G. Lape, TransformingFair Use: The Productive Use Factor in Fair Use
Doctrine,
10
58 ALB. L. REV. 677 (1995).
d at 680.
11659 F.2d 963 (9th Cir. 1981), rev'd, 464 U.S. 417 (1984).
12
d. at 970.
"TRANSFORMATIVE" USE DOCTRINE

productive. 13 The Supreme Court's Sony opinion noted that the pri-
vate use of VCRs by consumers in order to shift the times of viewing
television programs was not productive, but could nevertheless be a
fair use. As the Court pointed out: "The distinction between 'produc-
tive' and 'unproductive' uses may be helpful in calibrating the bal-
ance, but it cannot be wholly determinative. Although copying to
promote a scholarly endeavor certainly has a stronger claim to fair
use than copying to avoid interrupting a poker game, the question is
not simply two-dimensional." 14 The Sony majority instead insisted
on fair use as a highly contextual rule of reason that depended on a
thorough examination of the statutory factors. In a strong dissent,
Justice Blackmun, joined by three other justices, argued that the fair
15
use doctrine should protect only productive uses.
Despite the defeat of the Ninth Circuit's absolutist view of produc-
tive use in Sony, the doctrine was far from dead. Six years after Sony,
in a widely cited HarvardLaw Review article, Judge Pierre N. Leval
argued for the importance of considering "transformative use," a
synonym for productive use, in fair use analysis.1 6 Fair use, Leval ar-
gued, was not some strange anomaly in copyright law, but an inte-
gral part of the copyright scheme. Judge Leval suggested that a focus
on transformative use tied fair use analysis conceptually to a funda-
mental purpose of copyright law-"stimulating productive thought
and public instruction without excessively diminishing the incen-
tives for creativity."1 7
Considering the first statutory factor (purpose and character of
use), Judge Leval argued that uses of copyrighted expression that
simply repeat or repackage that expression could not constitute fair
use. "If, on the other hand," Leval wrote:

the secondary use adds value to the original-if the quoted matter is
used as raw material, transformed in the creation of new information,
new aesthetics, new insights and understandings-that is the type of
activity that the fair use doctrine intends to protect for the enrichment
of society. Transformative uses may include criticizing the quoted
work, exposing the character of the original author, proving a fact, or
summarizing an idea argued in the original in order to defend or rebut

13
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
14
d. at 455 n.40.
15
d. at 457 (Blackmun, J., dissenting).
16
Leval, supra note 5.
17
d. at 1110.
 7 COMM. L. & POL'Y 1 (2002)

it. They may also include parody, symbolism, aesthetic declarations,

8
and innumerable other uses.

Judge Leval was of the opinion that transformation was the sine qua
non of fair use.
Judge Leval's ideas proved quite influential in the Supreme
Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. 19 In
Campbell, the Court considered the fair use claim of the rap group 2
Live Crew, which had created a rap parody of Roy Orbison's pop hit,
"Oh, Pretty Woman." Acuff-Rose, which owned the publishing rights
to "Oh, Pretty Woman," declined the group's offer to credit the origi-
nal authors and pay the statutory rate for using the song. Un-
daunted, 2 Live Crew proceeded to release its version of the song,
20
titled "Pretty Woman."
The 2 Live Crew version, the lyrics of which are reprinted in an ap-
pendix to the Supreme Court's decision, begins with the signature
guitar riff and familiar first line of the Orbison hit: "Pretty woman,
walkin' down the street." From there, however, the rap version
quickly moves away from Orbison territory into a bizarre and pre-
sumably amusing series of lyrical embellishments such as "Big hairy
woman you need to shave that stuff," "Bald headed woman you got a
teeny weeny afro," and the accusatory "Two timin' woman girl you
know you ain't right/Two timin' woman you's out with my boy last
night/Two timin' woman that takes a load off my mind/ Two timin'
2
woman now I know the baby ain't mine." 1
In the ensuing copyright action, a federal district court, on a mo-
tion for summary judgment by 2 Live Crew, dismissed Acuff-Rose's
claim in 1991.22 The court analyzed the four statutory factors and
found that the rap group had established a valid defense of fair use.
In 1992, the U.S. Court of Appeals for the Sixth Circuit reversed
the district court's holding of fair use. 23 The Sixth Circuit took ex-
ception to the district court's evaluation of the first fair use fac-
tor-purpose and character of use. 24 The appellate court stated
that because the 2 Live Crew version was created for commercial
reasons, that is, to make a profit, the first factor must weigh
against the fair use defense. 25 Even assuming that another pur-

l8ld. at 1111.
19510 U.S. 569 (1994).
20
1d. at 572-73.
21id.
app. B at 594-95.
22
Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150 (M.D. Tenn. 1991).
23
Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429 (6th Cir. 1992).
24Id.
at 1435, 1437.
25
1d. at 1438-39.
"TRANSFORMATIVE" USE DOCTRINE

pose-such as social criticism-lay behind the creation of the par-

ody, the court reasoned that the commercial use of the original was
26
presumptively unfair.
The U.S. Supreme Court reversed the Sixth Circuit, remanding
the case for further proceedings. The unanimous Court, in an opin-
ion written by Justice David Souter, concluded that the Sixth Circuit
had overemphasized the "commercial use" factor and that 2 Live
Crew's version might be a fair use of the original.
The Supreme Court stressed the basic tension between an exclu-
sive grant of ownership to creative material under copyright law and
the need for growth and progress in science and the arts, which re-
quires building on earlier work. 27 Quoting Justice Story, the Court
noted that " [elvery book in literature, science and art, borrows, and
must necessarily borrow, and use much which was well known and
used before." 28 The Court then evaluated 2 Live Crew's work under
the four statutory factors.
The Supreme Court analyzed the first factor in light of Judge
Leval's HarvardLaw Review article. The crucial inquiry, the Court
wrote, was whether a later work added something to an earlier work,
that is, whether it was "transformative" in the sense that it takes the
29
earlier work and adds "new expression, meaning or message." If
the work is transformative, the Court suggested, factors such as use
for a commercial purpose, which the Sixth Circuit found so compel-
ling, may have less force. Citing Justice Blackmun's Sony dissent,
the Court contended that transformative works "lie at the heart of
the fair use doctrine's guarantee of breathing space within the con-
fines of copyright ... "30 Parody could make this transformative
claim, and thus 2 Live Crew was entitled to a potential fair use de-
fense. In particular, for parody to constitute fair use it must create a
new work that expresses some view on the original work. On the
other hand, the Court stated, if the parodist simply uses the original
creation "to get attention or to avoid the drudgery in working up
something fresh, the claim to fairness in borrowing from another's
work diminishes accordingly (if it does not vanish), and other factors,
like the extent of its commerciality, loom larger."31 The Court did

26
See id. at 1451.
27
Campbell, 510 U.S. at 575-76.
28
Id. at 575 (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845)
(No.
29
4,436)).
Id. at 579.
3OId.
3
id. at 580.
 7 COMM. L. & POL'Y 1 (2002)

point out that transformative use is "not absolutely necessary for a

finding of fair use . -32
The Court declined to evaluate the extent to which the rap version
was "transformative," but held that 2 Live Crew had to some extent
created a new work that criticized the earlier version. The rap
group's comparison of the relative innocence of the world evoked by
the Orbison work with the sordid realities of street life constituted
valid, if not high-level, parody, the Court found. 33 Moreover, the
Sixth Circuit's overemphasis of the commercial use element skewed
34
its analysis.
The third factor (amount and substantiality of portion used) gen-
erated a critique of the Sixth Circuit's approach. The Court acknowl-
edged that both the quantity and quality of material taken from the
original work was significant, and noted in particular that substan-
tial verbatim copying "may reveal a dearth of transformative charac-
ter or purpose under the first factor .... ,"3 The Court nonetheless
maintained that because parody must conjure up the original in the
mind of the listener, the issue was not a simple one. "Parody's hu-
mor, or in any event its comment, necessarily springs from recogniz-
able allusion to its object through distorted imitation," the Court
wrote. 36 Because of this need to borrow enough from the original to
evoke it in the minds of the audience, the Court stated that fair use
analysis should focus on how much more than necessary-after
achieving recognizability-was borrowed. The Sixth Circuit, the
Court reasoned, did not allow sufficiently for this conjuring up of the
original in its examination of 2 Live Crew's use of Orbison's original.
While the rap group did borrow the opening riff and first lyric line
from the original, the remainder of its version was largely original,
particularly lyrically. Even though the rappers' version may have
borrowed the best of the original, it remained a question for consid-
37
eration on remand how this factor should be resolved.
As to the effect on the market for the original, the Supreme Court
rejected the Sixth Circuit's "presumption" that commercial use nec-
essarily meant that a likelihood of harm to the market for the origi-
nal existed. This presumption was in error, in part because a parody
will rarely have a substantial effect on the market for an original,

32
d. at 579 (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,
478-80 (1984) (Blackmun, J., dissenting)).
33
Id. at 583.
34
35
d. at 583-84.
d. at 587.
36
d. at 588.
37
d. at 589.
"TRANSFORMATIVE" USE DOCTRINE

that is, it will not be perceived by the audience as a substitute for the
original. The transformative use notion once again made an appear-
ance. As the Court pointed out, when a use is transformative, as in
parody, "market substitution is at least less certain, and market
harm may not be so readily inferred." 38 Other harms might occur,
however, and should be considered on remand, the Court suggested.
For example, the parties did not sufficiently explore whether 2 Live
Crew's rap song would affect "the market for a non-parody, rap ver-
39
sion of 'Oh, Pretty Woman."'
In the wake of Campbell, it seems fair to assert that fair use
analysis has been "transformed." Judge Leval's "transformative
use" notion appears prominently not only in the analysis of the
first factor (purpose and character of use), where it is viewed as, if
not indispensable, highly auspicious, but in factors three and four
as well. In factor three-amount taken-verbatim copying in large
amounts tends to suggest a nontransformative use. In factor
four-market harm-transformative use tends to diminish the
probability of market harm through substitution. Campbell indeed
could be viewed as the apotheosis of the notion of transformative
use. As the following sections will discuss, however, the approach is
not without its difficulties.

WILL THEY KNOW IT WHEN THEY SEE IT?

One significant difficulty with the post-Campbell application of the

transformative use standard is that lower court decisions exhibit little
consistency in determining what sort ofuse is or is not transformative.
Uses that seem to meet the Court's criteria are labeled non-
transformative, often with little analysis. This section analyzes a
number of cases that seem to stray from the germ of the "transforma-
tive" idea presented in Campbell. Clearly, "transformative use" is a
contested concept, and the Supreme Court provided less than a fully
developed structure of analysis for later cases. Nevertheless, these
cases seem to construe the idea in ways that do not exhibit fidelity to
the Court's intention. No claim is made that these cases are represen-
tative of all fair use cases decided since Campbell; the point rather is
that a significant number of cases, some decided by influential federal
courts of appeal, are not tracking what seems to be the Campbell
Court's use of the concept.

38
d. at 591.
39
d. at 593.
 7 COMM. L. & POL'Y 1 (2002)

Consider, for example, a recent decision by an Illinois federal dis-

trict court, Ty, Inc. v. PublicationsInternational.4 Capitalizing on
the Beanie Babies craze, the defendant had published books with
photographs of the toys, along with essays on each particular Beanie
Baby and, according to the court,

its date of birth, date of release, date of retirement, if any, and its esti-
mated value along with other data, including such things as misprinted
labels, which are rare and increase value. The author also rates some as
Highly Recommended, as is Floppity (the lilac rabbit). Gobbles (the
turkey) isnot highly recommended.41

Ty, the maker of the Beanie Babies, sued for copyright infringement
because of the unauthorized photographs, as well as for use of its
trademarks.
Analyzing the defendant's fair use claim, the district court decided
under the first factor (purpose and character of the use) that the de-
fendants' publications were not transformative. The court stated
that a work is transformative "when it uses an earlier work as a foun-
dation upon which something new is built, something beyond, in
some way, the ambit of the earlier work."4 2 The district court went
on to opine that "claims that works are transformative are not ordi-
narily successful"4 3 and cited three other cases in which a
transformative claim had failed. 44 After pointing out that the photo-
graphs of the toys were an important element in marketing the
books, the court simply concluded, with no further analysis, that the
books "are not transformative, and, quite likely, not meant to be
45
transformative."
This, needless to say, is a puzzling conclusion. A guidebook that
takes photographs of popular toys and adds a great deal of commen-
tary and other information that would be useful to serious collectors is
anything but a mere reproduction of the original work, which in this
case was a plush toy. It is important to note, of course, that photo-
graphs of three-dimensional copyrighted objects are not simple repro-

4081 F. Supp. 2d 899 (N.D. Ill. 2000).

41
d. at 900-01.
42
d. at 904.
43
1d.
44
d. at 904-05 (citing Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150
F.3d 132 (2d Cir. 1998); Horn Abbot Ltd. v. Sarsparilla Ltd., 601 F. Supp. 360 (N.D.
Ill. 1984); Paramount Pictures v. Carol Publ'g Group, Inc., 11 F. Supp. 2d 329
(S.D.N.Y.
45
1998).
d. at 905.
"TRANSFORMATIVE" USE DOCTRINE

ductions. Moreover, if "transformative" means taking an original

work and adding new information and meaning, the books in Ty would
certainly seem transformative. At the very least, it would be a close
call. The district court's finding that the books were nontransforma-
tive, and the almost complete absence of analysis, is particularly odd
given that the court had found earlier in its opinion that "at the least,
the books are derivative works .... "46 For it would appear that a finding
that a work is a derivative work would be at least related to its degree of
transformativeness. As one insightful critic of the transformative use
standard has argued: "All we learn when ajudge tells us that the defen-
dant's work product is transformative is that he has created a deriva-
tive work." 47 In fact, the statutory definition of a derivative work
explicitly refers to "any form ... in which a work may be recast, trans-
formed, or adapted. "48 Conversely, the creation of a derivative work
would appear to be at least some evidence of transformativeness. The
argument here is not that any derivative work is automatically
transformative in the sense of adding new expression, message or
meaning, but that creating a derivative work is at least suggestive of
some transformation. When coupled with the addition of new informa-
tion and interpretation regarding the toys, the claim at least deserves
serious judicial analysis. Yet the Ty court rejected the transformative-
49
ness claim out of hand.
A New York federal district court exhibited similar confusion
about the criteria of transformativeness in a 1998 case, Paramount
Pictures Corp. v. Carol PublishingGroup, Inc.50 At issue was a book
titled The Joy of Trek that was written to help the uninitiated under-
stand the enthusiasms of obsessive "Star Trek" fans, and contained,
according to its jacket, "everything a Star Trek novice needs to know
to keep up with a diehard Trekker."51 According to the court, the

46
Id. at 902.
47
Zimmerman, supra note 3, at 262. See related discussion in Kudon, supra note
3.
4817 U.S.C. § 101 (1994) (emphasis added). But see Castle Rock, 150 F.3d 132
(finding that a trivia test based on the "Seinfeld" television series was not
transformative). "Although derivative works that are subject to the author's copy-
right transform an original work into a new mode of presentation, such works-un-
like works of fair use-take expression for purposes that are not 'transformative.'
Id. 49
at 143.
Strangely enough, the district court's discussion of factor three (amount and
substantiality of portion used) notes that the "defendants state, with some justice,
that their works are commentary and criticism." 81 F. Supp. 2d at 905. This charac-
terization, straight from section 107's preamble, would seem to suggest
transformativeness.
5011 F. Supp. 2d 329 (S.D.N.Y. 1998).
51
1d. at 332.
 7 COMM. L. & POL'Y 1 (2002)

book contained chapters that explained the popularity of the series,

gave a description of the typical fan and provided brief descriptions of
plots, major characters, alien races and technology in the series. The
book also included a guide to relating to "Star Trek" fans and an ac-
count of the author's experiences at "Star Trek" conventions. Some
popular lines from the show were reproduced verbatim (for example,
"live long and prosper"), but most of the book was not directly copied
from "Star Trek" scripts.
On the issue of transformative use, the court found The Joy of
Trek nontransformative, primarily because the middle portion of the
book "merely encapsulates the story of Star Trek. ... Although the
structure of the book differs from the dramatic linear format of the
Star Trek Properties, these chapters do not add anything substantial
that is new to the Star Trek story."5 2 The court rejected the argu-
ment that the descriptive portions of the book were interspersed
with humorous commentary and that the first and last sections of
the book were non-infringing. Quoting famed appellate judge
Learned Hand, the court stated that "'no plagiarist can excuse the
wrong by showing how much of his work he did not pirate.' "3
The problems with this analysis are numerous. The Hand quote
simply begs the question by assuming the borrower is a plagia-
rist-the fair use determination, on the other hand, is properly aimed
at determining whether, despite any borrowing, the use is fair. More
importantly, Judge Hand's statement dealt with infringement (more
precisely, substantial similarity) in the first instance, rather than fair
use, which is an entirely different question-fair use in essence as-
sumes a degree of taking that would, absent the defense, be infringing.
Further, it would seem to be two very different questions whether a
work is transformative versus whether some portions of an earlier
work were borrowed. A work might very well borrow extensively and
simultaneously be transformative, particularly when the borrowing is
not verbatim copying, as in this case. The Hand quote, however, was
used in the context of the court's discussion of transformative use,
which seems to conflate questions of infringement and transforma-
tion. As mentioned earlier, it is important to remember when discuss-
ing these cases that a finding that the work is transformative is not a
finding that the use is fair. The real point of the publisher's argument
in ParamountPicturesis not that some portions of the book were not
borrowed, but that the entire work, as a whole, was transformative in

52
1d. at 335.
5
3Id. at 335 (quoting Sheldon v. Metro Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d
Cir. 1936)).
"TRANSFORMATIVE" USE DOCTRINE

that it borrowed certain factual elements from the "Star Trek" story
line and cosmology and combined those with humor, commentary,
comic sociological analysis and other transformative elements. It
seems fairly clear that a work dealing with, among other things, the id-
iosyncrasies of "Star Trek" fans and humorous interpretations of the
television show's plots and cosmology adds at least some new message
and meaning to the original story. The court, on the other hand, sin-
gled out the borrowed portions of the work and declared that those
portions, by themselves, were not transformative. This analysis is
problematic-in almost any fair use case, one could separate out the
borrowed or reproduced elements from the transformative elements
and then declare that the former were not transformative. This is true
by definition, but it has little bearing on the overall transformative-
ness of a given work. The point, again, is not to claim that the pub-
lisher's fair use claim in ParamountPictures should necessarily have
succeeded, but rather that the application of the transformative use
standard was questionable.
Another case in which the criteria for determining transforma-
tiveness were ambiguous is Castle Rock Entertainment,Inc. v. Carol
PublishingGroup, Inc.5 4 In Castle Rock, the U.S. Court of Appeals
for the Second Circuit ruled in 1998 that a trivia game based on the
television series "Seinfeld" was not transformative. The defendants
had created The Seinfeld Aptitude Test ("The SAT"), a book that con-
tained hundreds of trivia questions and answers concerning the
characters and plots of the series. The questions were arranged into
various levels of difficulty, with the top level being "Master of Your
Domain Questions." The district court had concluded that The SAT
was transformative because such a test was within the section 107
preamble categories of "criticism, comment, scholarship, or re-
search."5 5 Indeed, the court noted, a work testing readers' knowledge
of Joyce's Ulysses, or Shakespeare's "Hamlet" would certainly qual-
ify within the preamble's categories. The district court further sug-
gested that The SAT was a "creative and original way" to capitalize
on a "T.V. culture" in which the minutiae of a television series about
nothing could become a matter of some concern. Despite the finding
of transformativeness, the district court denied the fair use claim
based on the totality of fair use factors.
The Second Circuit agreed that The SAT was not a fair use, but
disagreed that the book was transformative. "Any transformative

54150 F.3d 132 (2d Cir. 1998).

55Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 955 F. Supp. 260, 268
(S.D.N.Y. 1997).
 7 COMM. L. & POL'Y 1 (2002)

purpose possessed by The SAT is slight to non-existent," the Second

Circuit concluded. "The SAT's back cover makes no mention of ex-
posing Seinfeld to its readers, for example, as a pitiably vacuous re-
flection of a puerile and pervasive television culture, but rather urges
SAT readers to 'open this book to satisfy [their] between-episode
'
[Seinfeld] cravings.' "56
The Second Circuit drew a distinction between derivative works
and transformative works.

Although derivative works that are subject to the author's copyright

transform an original work into a new mode of presentation, such
works-unlike works of fair use-take expression for purposes that are
not "transformative." In the instant case, since The SAT has trans-
formed Seinfeld's expression into a trivia quiz book form with little, if
any transformative purpose, the first fair use factor weighs against de-
7
fendants.

The difficulty with the Second Circuit's formulation-a work can

"transform" without being "transformative" 5 8-is that the court has
moved the term "transformative" from the domain of the descriptive
to that of the normative. The Campbell Court seemed to use the term
descriptively-a work that does not simply supplant the original, but
"instead adds something new, with a further purpose or different
character, altering the first with new expression, meaning or mes-
sage"5 9 is transformative. The Second Circuit references to
"transformative purpose" seem less based on objective features of
the new work (does it add something to the original or is it mere re-
production?) and more on something akin to an equitable "clean
hands" requirement. In Campbell, on the contrary, "transformative"
is not necessarily a term of artistic or moral approbation, nor does it
generate a slam dunk victory for the fair use claim. The Second Cir-

56150 F.3d at 142. The Second Circuit apparently ignored the possibility that
there might be some disjunction between the marketing of a work and its true artis-
tic or cultural significance. The best parodies, for example, are sometimes presented
as straightforward plugs for the work parodied. Sometimes only a finely developed
sense
57
of irony reveals the distinction.
Id. at 132.
8
5SAn Illinois district court followed similar reasoning in one of the numerous
cases involving Beanie Babies. In Ty, Inc. v. W. Highland Publ'g, Inc., No. 98 C 4091,
1998 U.S. Dist. LEXIS 15896 (N.D. Ill. Oct. 5, 1998), the court held that a finding of
"commercial exploitation" of copyrighted material "largely negates any finding" of
transformativeness.
59
Id. at 43.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
"TRANSFORMATIVE" USE DOCTRINE

cuit's "transformative purpose" requirement thus seems far afield

from Justice Souter's conception of transformativeness.
Moreover, it is important to remember when considering
transformative use that the original work itself (the thing that is or is
not transformed) is the expression contained in that original work,
not necessarily all of the ideas and associations that arise from that
expression. Copyright law protects only an author's expression, not
ideas. In the case of "Seinfeld," the original expression would consist
of the literal words of the script, the physical particulars of the char-
acters, the lighting, the camera angles, etc. The SAT, if one thinks
about it carefully, is quite dissimilar from a television situation com-
edy; it is anything but mere reproduction. As one commentator put
it, "The book relied on the fans' knowledge of the episodes but did
not directly reproduce them or even something close to them." 60
Again, perhaps The SAT was not a fair use of "Seinfeld," but the key
point is that the transformative use analysis was not as coherent as
one might wish. Because post-Campbell courts sometimes seem to
assume that a finding of transformativeness is the golden ring that
leads to success on a fair use claim, these courts often go to great
lengths to deny the at least arguable transformativeness of works be-
fore them.
One of the most peculiar findings that a work was not
transformative came in a 1997 Ninth Circuit case, Dr. Seuss Enter-
prisesv. PenguinBooks USA, Inc.61 Dr. Seuss Enterprises brought an
infringement claim against Penguin for the book The Cat NOT in the
Hat!A Parody by Dr. Juice, in which the authors satirized the O.J.
Simpson trial in the style of Dr. Seuss. This undeniably asinine work
included such Seuss-inspired lines as: "A happy town/ Inside L.A./
Where rich folks play/The day away./ But under the moon/The 12th of
June/ Two victims flail/Assault! Assail! "62 Whatever the artistic mer-
its of the book, it unquestionably appears transformative-none of the
lines literally reproduce the Seuss original. 63
The Ninth Circuit panel, however, found otherwise. After a
lengthy discussion of whether the work was parody, as in Campbell,
or satire, which, unlike parody, does not critique or target the origi-
nal work, the court found The Cat NOT in the Hat! to be satire. It did
not, in other words, hold up Seuss' style to ridicule, but merely

60
Zimmerman, supra note 3, at 258 n.43.
61109 F.3d 1394 (9th Cir. 1997).
62
1d. at 1401.
63
Some elements are borrowed, including the cat's hat and the whimsical poetic
style, but neither the story line of the original nor the verbatim text is followed.
 7 COMM. L. & POL'Y 1 (2002)

adopted that style to comment on the Simpson case. Then, in what

seemed to be a non sequitur, the Ninth Circuit concluded that be-
cause the book was not a parody, it was therefore not transformative:

While Simpson is depicted 13 times in the Cat's distinctively scrunched

and somewhat shabby red and white stove-pipe hat, the substance and
content of The Cat in the Hat is not conjured up by the focus on the
Brown-Goldman murders or the O.J. Simpson trial. Because there is
no effort to create a transformative work with "new expression, mean-
ing, or message," the infringing work's commercial use further cuts
against the fair use defense64

Needless to say, this holding strains the bounds of any reasonable def-
inition of the word "transformative." Apparently, the Ninth Circuit
panel became convinced that absent parody, a humorous work could
65
not be transformative-an odd reading of Campbell, to say the least.

THE NEW MONISM

As the preceding section demonstrated, lower courts post-Camp-

bell have exhibited some confusion as to what, exactly, constitutes a
transformative use. No clear criteria are evident from the cases, and
the absence of serious analysis is often striking.
But beyond the definitional questions lurks an issue of potentially
much greater significance. That is, the post-Campbell focus on
transformativeness may well have the tendency to shut out absolutely
proper fair uses that plainly do not meet any reasonable standard of
transformativeness. Regardless of how the criteria of transformative-
ness are massaged, the juridical primacy of transformativeness is
problematic because it runs roughshod over an appropriate fair use

64
Id. at 1401.
65
Campbell did discuss the difference between satire and parody, but a careful
reading of Campbell suggests that the distinction was drawn for the purposes of dif-
ferentiating the fairness of significant borrowing. In Dr. Seuss Enterprises,on the
contrary, the degree of borrowing was minimal. In any event, Campbell certainly
does not hold that only parody is transformative. For a good discussion of the view
that all humorous uses should be considered favored uses under the statute, see Mi-
chael J. Lynch, A Theory of Pure Buffoonery: Fair Use and Humor, 24 DAYTON L.
REV. 1 (1998).
There is nothing preventing courts from declaring that all uses for the purpose of hu-
mor are favored under the first factor, regardless of whether they fall within any defini-
tion of parody. The Supreme Court's point that parody has a stronger need to quote
than other humor is not really the decisive question.
Id. at 22.
"TRANSFORMATIVE" USE DOCTRINE

balance. Empirical data seem to confirm this problem: One commen-

tator who performed an exhaustive analysis of post-Campbell fair use
cases through 1999 found that, almost universally, a finding that a
work was nontransformative was accompanied by a finding that the
use was unfair. 66 Given the Supreme Court's Campbell analysis, in
which transformativeness touched three of the four statutory factors,
this is hardly surprising. Despite the Court's caveat that
transformative use is not everything, lower courts' analyses some-
times seem to focus monistically on transformativeness as a proxy for
uses that are fair. This result is contrary to the statutory language and
to the conceptual underpinnings of fair use.
Even in a number of cases in which fair use might formerly have
been a close call, the transformative use factor seems now to be the
overriding consideration. Consider, for example, a 1998 fair use rul-
ing by the U.S. Court of Appeals for the Second Circuit in Infinity
BroadcastCorp. v. Kirkwood.67 In Kirkwood, the Second Circuit con-
sidered whether a service known as "Media Dial-Up," which allowed
customers to listen to radio broadcasts from distant cities, was a fair
use of those broadcasts. Media Dial-Up was not marketed to the pub-
lic, but to talent scouts looking for on-air talent, advertisers seeking
to verify the broadcast of commercials, performance rights organiza-
tions enforcing the copyrights of their members, and other profes-
sional clientele. Infinity, an owner of radio broadcasting properties,
claimed the service was infringing its copyright in the broadcasts.
In analyzing Dial-Up's fair use claim, three of the four factors
were difficult calls. As to factor two (nature of the copyrighted work),
the Second Circuit agreed that this factor favored the broadcaster,
even though a large percentage of the broadcasts consisted of music
and advertisements to which it did not own the copyright. Factor
three (amount and substantiality of the portion used) was difficult to
apply because many of Dial-Up's customers merely listened to small
portions of broadcasts, and the lower court proceeding had not pro-
duced adequate evidence of the extent of Dial-Up's retransmission.
However, because Dial-Up "potentially provid[ed] subscribers with
access to every radio station in the cities [Dial-Up] serves, 24 hours a
day, seven days a week," the court found this factor to favor the
broadcaster. 68 The Second Circuit found that the fourth factor (effect
of the use on the potential market) was also a close question, particu-
66
Kudon, supranote 3, at 599. The focus on transformativeness has even been im-
ported into a right of publicity case that did not involve copyright law. Comedy III
Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001).
67150 F.3d 104 (2d Cir. 1999).
68
ld. at 110.
 7 COMM. L. & POL'Y 1 (2002)

larly given the fact that the broadcaster had no clear intention to op-
erate for-profit listening lines. (The broadcaster did offer some
listening lines free of charge to advertisers.) In sum, three of the four
fair use factors provided little basis for a clear determination that the
use was or was not fair.
Ultimately, the transformative use factor seems to have been the
overarching principle in the court's determination that the use was
not fair. The lower court had found Dial-Up's use of the remote
broadcasts to be transformative because they were used for a differ-
ent "purpose" than the original broadcasts. While the purpose be-
hind the original broadcasts was entertainment, Dial-Up's use was
for informational purposes for its clients. The Second Circuit re-
jected this purpose-based or "functional" view of transformation be-
cause Dial-Up had not altered the broadcasts, but merely reproduced
them over phone lines. More importantly, the Second Circuit seemed
to place great emphasis of the finding of nontransformativeness. The
court quoted Judge Leval's HarvardLaw Review article for the prop-
osition that "a use of copyrighted material that 'merely repackages
69
or republishes the original' is unlikely to be deemed a fair use."
Even though the Second Circuit noted the Campbell dictum that
transformativeness was not absolutely necessary, and even though
the court found some potential public benefit to Dial-Up, the absence
of transformation carried the day. "In sum, we think the different,
and possibly beneficial, purposes of Kirkwood's customers are out-
weighed by the total absence of transformativeness in Kirkwood's
acts of retransmission," the court wrote.7 0
In a later section of the opinion, summarizing its findings, the
court noted that "our assessment of the case in more abstract terms
only strengthens our conclusion that [Dial-Up's] is not a fair use.
[Dial-Up] creates nothing and advances no body of knowledge or crit-
icism." 71 In other words, the Second Circuit's "big picture" view of
the case was based largely on the perceived absence of
transformativeness. Although few cases are not quite this explicit
about the effects of the transformative use analysis, the empirical
findings cited above suggest that, post-Campbell, the presence or ab-
sence of transformativeness is quite closely correlated to the overall
result of the fair use analysis.
Even in cases in which an absence of transformativeness does not
necessarily seem to be the overriding factor in the fair use analysis,

69
d. at 108 (citing Leval, supra note 5, at 1111).
70
71
d. at 109.
d at 111.
"TRANSFORMATIVE" USE DOCTRINE

the influence of such a finding often extends beyond the purpose and
character factor. Campbell suggested that an absence of transforma-
tion could serve as a proxy for a determination of market harm under
the fourth factor, because a nontransformative borrowing presum-
ably can act as a substitute for the original. This notion has been
picked up by a number of lower courts.
In Oasis PublishingCo., Inc. v. West Publishing Co., a Minnesota
federal district court in 1996 ruled against fair use in a case involving
reports of Florida court decisions. 72 Oasis had challenged legal pub-
lishing giant West by announcing plans to create a CD-ROM with
Florida cases that included West's "star pagination" feature that
tracks internal page breaks in different publishers' versions of cases.
The case reports themselves, of course, were public domain material.
In its fair use analysis, the district court not only found an absence of
transformativeness under the first factor (purpose and character of
the use), but leveraged that finding into a presumption of market
harm under factor four (effect on potential market for copyrighted
work). As the court put it, "Because Oasis' proposed CD-ROM product
is nontransformative, the Court presumes market harm to West." 73
This conflation of factors one and four has become increasingly com-
mon since Campbell. Copyright scholar Laura G. Lape has pointed out
that requiringtransformativeness under factor one allows the fourth
factor to, in effect, count twice. As Professor Lape wrote:

For example, the Supreme Court stated in [Campbell] that "the central
purpose" of inquiry under the first factor "is to see ... whether the new
work merely 'supersedes the objects' of the original creation ... or in-
stead adds something new, ... it asks, in other words, whether and to
what extent the new work is 'transformative."' The Court was thus
stating, in effect, that the centralpurpose of the investigation underthe
first factor is to see whether the fourth factor has been satisfied.... The
fourth factor is thus permitted to wipe out the first ... instead of merely
74
entering into the fair use balance against it.

A number of other post-Campbell courts have explicitly made this

link between transformativeness under factor one and market harm
under factor four. 75 Judge Leval himself, in a 1994 article, wrote of

72924 F. Supp. 918 (D. Minn. 1996).

73
Id. at 929.
74
Lape, supra note 9, at 716-17 (emphasis added).
7
1See, e.g., Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132 (2d
Cir. 1998); Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir.
 7 COMM. L. & POL'Y 1 (2002)

Campbellthat "of cardinal importance is the close interdependence of

the first and fourth factors." 76 Leval noted that "the more the
appropriator is using the material for new transformed purposes, the
less likely it is that appropriative use will be a substitute for the origi-
nal ... .
A particularly unconvincing application of the link between fac-
tors one and four is found in Dr. Seuss Enterprises,the case involving
the Cat in the Hat-style satire of the O.J. Simpson case, discussed in
the previous section. In evaluating factor four (commercial harm),
the Ninth Circuit stated that because the defendants' "use of The
Cat in the Hat original was nontransformative, and admittedly com-
mercial, we conclude that market substitution is at least more cer-
tain, and market harm may be more readily inferred."78 A more
careful analysis would reveal that the chances that consumers will
substitute an opportunistic and vacuous "satire" of the Simpson case
for a beloved children's classic are minimal. The case illustrates that
not only does the overemphasis on transformative use lead to an un-
fair "double counting" in fair use analysis, but it can lead courts to
reach rather unlikely conclusions about market harm.
Other courts have misused the transformative use doctrine simply
by placing too much emphasis on its presence or absence in factor
one (purpose and character of use) analysis. As noted earlier, the
Campbell Court made it plain that transformativeness was not re-
quired under factor one, although its presence could aid the defen-
dant's case. Some later courts, however, seem to have overlooked
that principle. For example, in Nihon Keizai Shimbun, Inc. v.
Comline Business Data, Inc.,79 the Second Circuit seemed to make
transformative use a prerequisite to success on factor one. Nihon in-
volved an "abstract" service that produced rough translations of the
plaintiff's Japanese financial news stories; the plaintiff claimed
these abstracts violated its copyright. In considering the fair use
claim, the Second Circuit noted that the defendant had produced the
abstracts for one of section 107's preferred purposes-news report-
ing. Nonetheless, the Second Circuit held that because the abstracts
were not transformative, the factor one analysis went against the de-
fendant. As the court put it: "As we noted above, the abstracts are for

1997); L.A. Times v. Free Republic, No. CV 98-7840, 2000 U.S. Dist. LEXIS 5669
(C.D.
76
Cal. Apr. 4, 2000).
Pierre N. Leval, Copyrightin the Twenty-first Century: Campbell v. Acuff-Rose:
Justice Souter's Rescue of Fair Use, 13 CARDOZO ARTS & ENT. L.J. 19, 22 (1994).
77
d. at 22-23.
78109 F.3d at 1403.
79166 F.3d 65 (2d Cir. 1998).
"TRANSFORMATIVE" USE DOCTRINE

the most part direct translations of Nikkei articles; defendants added

almost nothing new in their works. This factor weighs strongly
against fair use."80 This analysis is simply a misreading of Campbell,
however. The fact that a transformative use may be a plus for a de-
fendant on factor one does not mean that the absence of a
transformative use means the factor "weighs strongly against fair
use." The Second Circuit panel may have quite properly felt that the
abstracts took too much of the originals (factor three) and would
cause commercial harm to the plaintiff (factor four), but that does
not justify elevating transformative use from an optional to a neces-
sary aspect of factor one analysis.
Beyond these particular distortions, the fundamental difficulty
with the new monistic emphasis on transformativeness is that it
turns the fair use analysis into a quasi-moral evaluation of the efforts
of the putative fair user. Fair use should properly be an analysis of
the public benefit of dissemination of the work, regardless of
whether that dissemination is reproduced verbatim from the original
or modified in some way, balanced against the commercial harm to
the statutory rights of the copyright holder. As Professor Lape found
in her historical study of "productive use," transformative use has
not been a central part of the fair use tradition. Instead, she con-
cluded, "the productive [or transformativel use factor distracts at-
tention from the central consideration of the first factor of section
107, the social utility of the use."81
Under the transformative use doctrine, the hard work or industry
of the user seems central to the analysis of a number of courts.8 2 In-
deed, the very use of the synonym "productive use" suggests an em-
phasis on industry. Judge Leval's HarvardLaw Review article spoke
of "add[ing] value to the original."8 3 If one works hard and trans-
forms the original, one is somehow "worthy" of a fair use finding. If

80
d at 72.
81
Lape, supra note 9, at 723.
82
The view put forward here that courts consider the industry of a putative fair
user in a sort of quasi-moral evaluation is, of course, contestable. The argument here
is certainly not that courts explicitly apply this standard. Rather, the claim is that it
can fairly be inferred from reading a number of the post-Campbell lower court deci-
sions. It seems uncontroversial that in looking for evidence of "transformation,"
courts are looking for evidence of effort on the part of the putative fair user to bring
new meaning or message to the original work rather than simply reproducing it. The
claim here is not that effort alone is sufficient, or that most courts even necessarily
conceptualize the inquiry in this way, but that effort is necessary to prove transfor-
mation, and that some decisions thus can be interpreted fairly as requiring some
minimal amount of work or industry to "justify" fair use claims.
83
Leval, supra note 5, at 1111.
 7 COMM. L. & POL'Y 1 (2002)

one simply reproduces portions of the original, on the other hand, the
use is presumptively unfair. The concept of desert looms large in this
analysis. This quasi-moral outlook might make sense if fair use were
indeed a "taking" of property to which the copyright holder had some
sort of natural right. However, fair use is not, in fact, such a taking.
Courts have said repeatedly that ownership of copyright is not a nat-
ural right at all, but instead an instrumental, utilitarian right de-
signed to serve the public interest.8 4 Copyright is the carrot granted
solely to encourage creative expression. Moreover, fair use is an inte-
gral part of this effort to produce valuable social goods and make
them widely available. Fair use, in other words, is not something a
borrower must earn through good behavior-by being sufficiently
"transformative" or "productive"-but a fundamental part of a thor-
oughly utilitarian scheme, available both to those who transform and
those who do not.
The structure of the statute itself supports this interpretation.
The copyright owner is not granted a monopoly on all uses of the
work under the 1976 Act. Instead, the copyright owner is given only
the exclusive rights under section 106, including the right to repro-
duce, prepare derivative works, distribute copies, perform and dis-
play the work. Section 106's preamble expressly states that those
rights are "[slubject to sections 107 through 120." Section 107, of
course, is the fair use provision. The exclusive rights are thus
granted subject to the fair use right. As a result, the right to use fairly
is not a "taking" from the copyright owner's section 106 exclusive
rights-those exclusive rights are conferred with the right of fair use
alreadydivested, as it were. The fair use of any work is always and al-
ready in the public domain. As a result, it makes little sense to re-
quire a user to prove his or her bona fides through "transformation"
in order to be deserving of a fair use finding. Yet this kind of
quasi-moral determination seems to lie at the heart of recent courts'
insistence on transformation in order to justify fair use. This empha-
sis on individual worthiness of fair use claims is a kind of category
mistake that focuses on the individual user at the expense of the
broader picture, which is the public interest in the dissemination of
works through fair use. Judge Leval and his followers in the courts

84
The Sony Court noted the tendency of courts to forget this important point, by
observing that "while the law has never recognized an author's right to absolute
control of his work, the natural tendency of legal rights to express themselves in ab-
solute terms to the exclusion of all else is particularly pronounced in the history of
the constitutionally sanctioned monopolies of the copyright and the patent." Sony
Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 n.13 (1984).
"TRANSFORMATIVE" USE DOCTRINE

are guilty of an error in emphasis here-the purpose of fair use

should not be the transformation of copyrighted works, but their
broad dissemination,with due regard for the commercial interests of
the copyright owner.
The Supreme Court has discredited a similar quasi-moral stan-
dard for the entitlement to copyright by completely rejecting the
"sweat of the brow" theory for compilation copyrights in FeistPubli-
cations, Inc. v. Rural Telephone Service Co., Inc.85 After Feist, hard
work in the gathering of facts does not necessarily entitle one to a
copyright on a compilation of those facts. Although this holding is
not directly related to fair use, the same dynamic should be at work
in fair use analysis-hard work, or the absence of hard work, by a pu-
tative fair user should be entirely irrelevant in a fair use determina-
tion. The point here is that the public good should control the
analysis, whether in the protection of copyrightable works in the
first instance, or in the legal right to appropriate from those same
works. Just as in the granting of copyrights, the key variable in fair
use should be public benefit, not individual effort or "worthiness."
The entire statute is aimed at balancing individual incentives to cre-
ate with the public interest in broad dissemination of new works and
ideas. Transformative use doctrine skews this balance with its atten-
tion to the activities of the individual putative fair user, rather than
the value of dissemination. As one commentator emphasized the
overriding importance of public benefit: "A lazy copy must have
some attraction to consumers to find a market; if its attraction fur-
thers dissemination of the work, its social value may exceed the value
of a transformative use, whether because the intrinsic value of the
86
latter is slight or because its dissemination is restricted."
The structure of the statute supports this argument in another
way. As noted earlier, several scholars have pointed out that
transformative use is often just a synonym for the creation of a deriv-
ative work. However, the Act makes no sense if read to require that
fair use may be invoked only in the context of derivative works. Sec-
tion 107 fair use is granted with regard to all of the exclusive rights
found in section 106. Thus, there must be some degree of fair use
when it comes to simple reproductions of the original work, the ex-
clusive right found in section 106(1). As a result, mere reproduction
or verbatim copying must be permissible to some extent-the idea
that a use is ordinarily not fair absent transformation is not a reason-

85499 U.S. 340 (1991).

86
Lloyd L. Weinreb, The 1998 Donald C. Brace Memorial Lecture: Fair Use, 4
FORDHAM L. REV. 1291, 1307 n.103 (1999).
 7 COMM. L. & POL'Y 1 (2002)

able reading of the statutory scheme. This is precisely what the Su-
preme Court majority recognized in the Sony case.s7 Of course, such
reproduction is always subject to the other section 107 factors, in-
cluding the extent of the taking and commercial harm to the copy-
right holder. The argument here is not that "anything goes" in fair
use analysis, but simply that undue attention to transformation is an
interpretive error.

CONCLUSION

The judicial focus on the transformative use doctrine in fair use

analysis creates a number of difficulties for copyright law. Courts of-
ten have widely varying notions of what sorts of uses constitute
transformative uses, and sometimes appear to manipulate that de-
termination based on the desired result. Moreover, some courts ap-
pear to use the presence or absence of transformative use as a proxy
for the fair use determination itself. This approach is encouraged by
the fact that transformative use doctrine under factor one is often a
slightly modified restatement of factor four's inquiry into commer-
cial harm. As a result, overemphasis on transformativeness in factor
one analysis leads to a double counting of factor four. Moreover, the
tendency of transformative use analysis to evolve into a quasi-moral
evaluation of the industry of the putative fair user leads to an obscur-
ing of the public interest in the dissemination of the information,
whether or not the second use is transformative.
This article has suggested that the overemphasis on
transformative use is incorrect as a matter of legal doctrine, as well
as harmful to the public interest. Although it is unlikely the courts
will eschew transformative use analysis altogether, a deemphasized
and clarified version of the doctrine would help courts focus less
upon the industry of the particular defendant, and more upon the ap-
propriate balance between the copyright holder's rights and the pub-
lic good.

87464 U.S. 417. "Congress has plainly instructed us that fair use analysis calls for
a sensitive balancing of interests. The distinction between 'productive' and 'unpro-
ductive' use may be helpful in calibrating the balance, but it cannot be wholly deter-
minative." Id. at 455 n.40.