What Does It Mean to Be Transformative?

This week, we’ll look at fair use cases and learn about their effect on and meaning for the work that we do. Read the first post in our series about Fair Use Week 2018.

A music publisher, a rap artist, an irreverent parody, and a lawsuit—what do all of these have to do with how we use fair use in a university environment?

Watch! Parody and Fair Use: Campbell v. Acuff Rose

Quite a bit, as it turns out. In the last few decades, the concept of transformational fair use ties into the first factor of a fair use analysis—the purpose and character of the use. Judge Pierre Leval’s 1990 commentary, “Toward a Fair Use Standard” in the Harvard Law Review, first laid out the case for transformative fair use. Leval argued that the analysis of the first factor should turn on “whether, and to what extent, the challenged use is transformative” (p.1111).

One case that that has always interested me is Campbell v. Acuff Rose, in which Luther Campbell, the leader of the rap group 2 Live Crew replaced risqué material on an album with a parody of Roy Orbison’s song “O Pretty Woman” in order to produce a clean version that could be sold in more venues.In his memoir The Book of Luke, Campbell says that he was surprised to be named in a lawsuit over that song and even more surprised to find himself defending it at the Supreme Court.

In its 1994 opinion, the Supreme Court sent the case back to the lower court, instructing it to change its analysis to focus less on whether Campbell’s use was commercial (which of course it was) and to consider:

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. 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 Supreme Court’s introduction of the idea of transformative fair use in Campbell v. Acuff Rose has had a major impact on copyright law. Researchers who have applied statistical methods of regression analysis to fair use cases have found that a finding of transformative use is one of the main factors in a favorable fair use decision. In many, if not most fair use cases, the determination of whether a work is transformative fair use is one of the court’s major task.

In a similar manner, teachers, students, and staff in all sorts of educational institutions use transformative fair use all the time. For example:

  • UNC Libraries makes assertions of transformative fair use when we digitize old letters. Their creators may have written the letters to stay in touch with family and friends, but we reproduce them so that we can learn about and study the past.
  • A student documentary filmmaker asserts transformative fair use when they incorporate a news clip in a film on environmental damage. Initially, the news clip was a straightforward report of an accident, but the filmmaker uses the clip as part of a new argument and new purpose.
  • A visual artist may take the full text of several books and rearrange them into an installation that serves as a “literary concordance” and makes study and research inspiring.

I can (and often do) go on and on with examples of transformative fair use that I encounter every day. This legal concept enriches our work in innumerable ways. To learn more about this case and fair use, follow the links below:

Join us tomorrow to learn about our next case!

Are you involved in Fair Use Week programs? What are your questions about fair use? Follow us and comment on Twitter @UNCScholComm and @OpenAcess_UNC.

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