An introduction to “Transformative Works”
Most people in fandom spaces have heard of “transformative works.” You don’t have to look deeply to find arguments that work that is transformative is clear fair use, and therefore protected. It sometimes almost feel like it’s a word with magical powers “This work is transformative! That means it’s not a copyright violation!” Unfortunately, it’s not quite that simple. Work that truly is transformative is definitely more likely to be fair use. In fact, whether a work is transformative is often the key factor in a fair use decision. But it still isn’t the only factor in a fair use analysis … plus, even if it was we still need to actually know how to tell if a work IS transformative. So let’s talk about that a bit here.
The Copyright Office states that “Transformative Uses are those that add something new, a further purpose or different character, and do not substitute for the original use of the work.” But what does that mean? You can characterize almost anything beyond a straight copy this way if you try hard enough, and if that were the case, then entire markets would be turned on their heads. Could a filmmaker argue that a film adaptation of a novel is “transformative” and therefore fair use? What about a musician that takes, say, the lyrics from a famous song but puts it to a melody from a totally different style of music? What about a sequel to an existing book or movie? The list could go on, but I think it’s already pretty clear that, at least in our current system, some or all of these uses would generally NOT be ok without permission. On the other hand, some works DO need to be transformative or nothing is ever fair use.
There are lots of things to consider when determining whether something is a “transformative” use. However, there are a couple questions to ask when trying to decide if a use is fair. First, does the use add any new expression or meaning to the underlying work? Second, does it ad value to the underlying work, such as by adding new information, aesthetics, insights, or understandings. If the answer to these questions are yes, then there’s a decent chance that the work may be deemed transformative. It’s also helpful to look at what the Copyright Act lists as fair use: commentary, criticism, news reporting, teaching, scholarship, and research. If we look at one of the strongest fair use categories, parody, that is both criticism and that criticism “transforms” the original work by opening it up to ridicule. It wouldn’t be fair use without the criticism portion, which in turn is the piece that makes it transformative.
In later posts, we’ll continue this exploration of fair use and break down some significant court cases and look at what courts have actually said about what makes particular uses transformative (or otherwise fair). It’s important to remember that the law isn’t JUST the text of the statute. It’s shaped by how courts interpret that statute, especially with a multi-part test like we have here!
