Transformative use

See, e.g., Campbell v. Acuff-Rose Music, a case in the United States Supreme Court: Under the first of the four 107 factors, "the purpose and character of the use, including whether such use is of a commercial nature ...," the inquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially "transformative," altering the original with new expression, meaning, or message.

For example, in Rogers v. Koons transformation was not even cited as the court found the use failed to meet any of the purposes in the preamble of 17 USC § 107.

"[1] Transformativeness is a crucial factor in current legal analysis of derivative works largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc.

The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the accused infringers' parody of "Oh, Pretty Woman," which the case involved.

In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work.

As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is.

...[If] 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—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

In such cases, as illustrated by Kelly v. Arriba Soft Corporation[5] Perfect 10, Inc. v. Amazon.com, Inc.,[6] and Authors Guild, Inc. v. Google, Inc.,[7] the courts find a derivative-work use (such as that of thumbnails in an image search engine, for indexing purposes) or a copy of text (to facilitate key-word indexing) transformative because it provides an added benefit to the public, which was not previously available and might remain unavailable without the derivative or secondary use.

The Supreme Court, however, has directed us to be mindful of the extent to which a use promotes the purposes of copyright and serves the interests of the public.It then concluded that the public benefit had the greater weight here: We conclude that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case.

[8] Thus, the Ninth Circuit said in its opinion that "Arriba's creation and use of the thumbnails [the derivative work] does not harm the market for or value of Kelly's images."

Still another data point is provided in the Second Circuit's 2015 decision in Authors Guild, Inc. v. Google, Inc.[9] The court's opinion, written by Judge Pierre Leval, a highly influential scholar of fair use,[10] explains how Google's copying entire texts, to digitalize them so that the public (users) can search for key words and see displays of snippets of the text surrounding them, "is transformative within the meaning of Campbell.

"[11] He explains more specifically: Google's making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs' books without providing the public with a substantial substitute for matter protected by the Plaintiffs' copyright interests in the original works or derivatives of them.

This tool permits users to discern fluctuations of interest in a particular subject over time and space by showing increases and decreases in the frequency of reference and usage in different periods and different linguistic regions.

It also allows researchers to comb over the tens of millions of books Google has scanned in order to examine "word frequencies, syntactic patterns, and thematic markers" and to derive information on how nomenclature, linguistic usage, and literary style have changed over time.

The court concluded as to the search function: "We have no difficulty concluding that Google's making of a digital copy of Plaintiffs' books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell."

The copy in Google's files was made available to the public only to enable the search functions to reveal limited, important information about the books.

The purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals.

On the one hand, the pop-ups provide the public with additional information about making buying decisions (particularly in the form of price comparisons).

[18][19] On February 25, 2010, the United States Court of Appeals for the Federal Circuit ruled 2–1 that sculptor Frank Gaylord, sculptor of a portion of the Korean War Veterans Memorial, was entitled to compensation when an image of the memorial was used on a 37-cent postage stamp, because he had not signed away his intellectual property rights to the sculpture when it was erected.

In 2006, Gaylord retained Fish & Richardson as pro bono counsel to make a claim that the Postal Service had violated his Intellectual property rights to the sculpture and he should be compensated.

The Postal Service argued that Gaylord was not the sole sculptor (saying he had received advice from federal sources—who recommended that the uniforms appear more in the wind) and also that the sculpture was actually architecture.