From the University Presses -- Is "Functional" Use "Transformative" and Hence "Fair"? A Copyright Conundrum

The decision from the Fourth Circuit Court of Appeals on April 16, 2009, in the case of A.V. v. iParadigns, LLC is the latest in a string of judicial rulings about “fair use” that employs the concept of “transformative” use to cover “functional” uses different from the original in a manner that is troubling both intellectually and practically. Intellectually, these rulings stretch the natural meaning of “transformative” well beyond the bounds of common sense — and beyond, I contend, the meaning intended by the jurist whose writing gave rise to the development of this trend in copyright interpretation in the first place. Practically, they open a Pandora’s box out of which all sorts of legal mischief may ensue — and may further contribute to the public’s already severe lack of confidence in the unpredictability of “fair use” decisions in the courts. In what is undoubtedly one of the most influential articles ever published in a law review by a sitting judge, “Toward a Fair Use Standard” (Harvard Law Review, March 1990), Pierre N. Leval begins by admitting that the reversal on appeal of two of his decisions as a district court judge (in Salinger v. Random House, Inc. [1987] and New Era Publications Int’l v. Henry Holt & Co. [1988]) had led him to ponder the need for “a cogent set of governing principles” that could get judges like him from simply deciding cases “upon ad hoc perceptions of justice without a permanent framework” to help guide their interpretations. His effort to develop “a fair use standard” takes off from his understanding of “the objectives of copyright law” in the United States as being basically “utilitarian” in nature, viz., viewing copyright ownership not as a natural right of the author but as “designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” The temporary monopoly that copyright law invests in authors is aimed at motivating them to create new works, but if exercised in too sweeping a fashion, that monopoly can undermine the creativity of others that builds on the original authors’ works, and hence “fair use” provides a kind of safety valve preventing copyright from becoming counterproductive in carrying out the Constitutional mandate “to promote the Progress of Science and useful Arts.” As such, fair use “is a necessary part of the overall design” of copyright law, not just a “bizarre, occasionally tolerated departure” from it. In Leval’s view, the key to keeping copyright interpretation in line with the Constitutional mandate lies in placing the concept of “transformative use” front and center. As he defines it, “the use must be of a character that serves the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.” Leval gives pride of place to this concept as he sees it embodied in the first of the four factors set forth in Section 107’s articulation of the considerations that courts must bear in mind when reaching a decision about whether any particular use is fair. This factor, “the purpose and character of the secondary use,” he calls at one point “the soul of fair use.” According to Leval, “one must assess each of the issues that arise in considering a fair use defense in the light of the governing purpose of copyright law,” which is manifested most straightforwardly in this idea of “transformative use.” Although no one factor alone is determinative in a fair use analysis, that a use is transformative in this sense creates a strong presumption that it is fair, and the other three factors would need to weigh heavily against a use being fair to override this presumption. The use’s transformative character “lies at the heart of the fair user’s case.”