Fair Use and the New Transformative
In the eyes of many, the "transformative" subfactor of the fair use analysis is expanding. Recent decisions such as Cariou v. Prince, Seltzer v. Green Day, and the Google Books line of cases have allegedly pushed the doctrine into new and problematic territory. Given the subfactor's power in the aggregate fair use analysis and its strong parallels to the goals of copyright law, the scope of the transformativeness inquiry is critical to defining permitted uses under SS 107. Accordingly, this Article assesses the claims that Cariou et al. have modified the scope of transformativeness. Part I paints, in broad strokes, the history of the transformativeness subfactor. Part II focuses on recent copyright decisions and concludes that some cases have expanded the doctrine of transformativeness into new territory. Some of those modifications are inconsistent with prior decisions. Finally, Part III considers paths to stabilize the transformative subfactor. Assistant Professor and Dean of Academic Success, Bar Preparation, and Experiential Learning, Barry University Law School, LL.M. Columbia University Law School, J.D. Florida State University College of Law. I am thankful to: Barry University, for supporting this Article with a research grant; the individuals who assisted through discussion of this topic or who reviewed a draft of this Article, including Jennifer T. Criss, James Grimmelmann, Felicity Kohn, Mickey Osterreicher, and Josh Simmons; the research assistants who worked on this Article, Jennifer Barron, Richard Pallas, and Siavash Tourzani; and the artists who spoke with me about this topic. SITES, FAIR USE AND THE NEW TRANSFORMATIVE, 39 COLUM. J.L. ARTS 513 (2016) 514 COLUMBIA JOURNAL OF LAW THE ARTS [39:4 I. The Old Transformative 516 A. Fair Use Introduced 516 B. Transformativeness Defined 518 Modifications and Interpretive Perspective 519 II. The New Transformative 522 A. Search Engine and Related Cases 522 B. Appropriation Art: Seltzer v. Green Day 523 C. Cariou 529 D. Kienitz 533 E. Assessing the New Transformative 534 III. A Model for Transformative 536 A. A Fork in the Road 537 B. Right Path: Retain Content Transformation 538 C. Multiple Purposes 542 D. Interpreting Purpose: Which Perspective Matters? 543 E. Final Thoughts on the New Transformative 548 Conclusion 549 Fair use is a doctrinal pinata. Recently, the motivation for courts and commentators to line up and take a swing has been Cariou v. Prince, Seltzer v. Green Day, and numerous search related cases; their battle cry in the ensuing volley has been that the transformativeness inquiry under SS 107(1) of the fair use doctrine has stretched too far.1 If, as other commentators have suggested, fair use is a muscle that was strengthened by use, it might now be strained by overextension.2 Commentators have criticized the murkiness and secondary effects of these cases' standards3 and speculated whether, in light of them, Congress should modify the fair use doctrine.4 This alleged expansion can be cast as a positive 1. See, e.g. Jessica Litman, Campbell at 21/Sony at 31, 90 WASH. L. REV. 651, 652, n.4 (2015) (collecting sources) Pamela Samuelson, Possible Futures of Fair Use, 90 WASH. L. REV. 815, 829 (2015) (same) Matthew D. Bunker Clay Calvert, The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff Rose Music, 12 DUKE L. TECH. REV. 92, 95 (2014) Jennifer Pitino, Has the Transformative Use Test Swung the Pendulum Too Far in Favor of Secondary Users? THE ADVOCATE, Oct. 2013, at 26, 29 30; Barry Werbin, Seltzer v. Green Day: Ninth Circuit Expands Copyright "Transformative" Fair Use to Street Art Embedded in Music Video, INTELLECTUAL PROPERTY TODAY, Oct. 2013, at 13; see also Jacqueline Morley, The Unfettered Expansion of Appropriation Art Protection by the Fair Use Doctrine: Searching for Transformativeness in Cariou v. Prince and Beyond, 55 IDEA 385, 397 98 (2015) Benjamin Moskowitz, Toward A Fair Use Standard Turns 25: How Salinger and Scientology Affected Transformative Use Today, 25 FORDHAM INTELL. PROP. MEDIA ENT. L.J. 1057, 1088 91 (2015) 2. Cf. Rebecca Tushnet, Content, Purpose, or Both? 90 WASH. L. REV. 869, 874 (2015) (making this analogy based on Peter Jaszi and Pat Aufderheide's comment, but not arguing that courts have strained fair use or transformativeness) 3. See, e.g. Anthony R. Enriquez, The Destructive Impulse of Fair Use After Cariou v. Prince, 24 DEPAUL J. ART TECH. INTELL. PROP. L. 1, 47 (2013) 4. See, e.g. Edward E. Weiman, Transforming Use: The Google Books Cases Have Created A New Area of Controversy Regarding the Transformative Use Defense to Copyright Infringement, LOS SITES, FAIR USE AND THE NEW TRANSFORMATIVE, 39 COLUM. J.L. ARTS 513 (2016) 2016] FAIR USE AND THE NEW TRANSFORMATIVE 515 trend5 or as problematic,6 but however framed, there is a growing belief among many that these cases reflect a fair use doctrine mutating at its edges.7 This diagnosis arises at a time when many entities are already contemplating amending the Copyright Act.8 Even removed from the cases lying at its boundaries, fair use is regularly seen as unpredictable by artists, attorneys, and the general public.9 The transformativeness inquiry shares that reputation: the leading copyright treatise describes it as being so malleable as to be "all things to all people."10 Although the predictability of fair use is itself a topic of debate, that such a debate exists says something about fair use's predictability.11 That uncertainty has a price. A 2014 report by the College Art Association found that a significant portion of the art community, broadly defined, has avoided or abandoned works because of copyright concerns, including: one third of visual artists and visual art professionals, one fifth of artists generally, over one half of editors and publishers, and over one third of art historians.12 A meaningful part of that confusion stems from uncertainty about the parameters of fair use.13 It reportedly leads to art historians avoiding writing historically oriented texts, graduate students being warned away from certain topics, a perceived decline in academic freedom, self censoring among editors, avoidance of certain artists and genres amongst museum curators, and artists settling for "inferior substitutes when permissions to incorporate copyrighted visual material have been requested and refused."14 Separate from whether fair use is too broad or too narrow, "the ANGELES LAWYER, June 2014, at 16. 5. See, e.g. Andrew Gilden Timothy Greene, Fair Use for the Rich and Fabulous? 80 U. CHI. L. REV. DIALOGUE 88, 93 (2013) cf. Andrew Gilden, Raw Materials and the Creative Process, 104 GEO. L.J. 355, 396 408 (2016) (advocating for a fair use test that would be even broader than Seltzer's) 6. See, e.g. Kathleen K. Olson, The Future of Fair Use, 19 COMM. L. POL'Y 417 (2014) 7. See, e.g. Tushnet, supra note 2, at 883 84. 8. See, e.g. USPTO Dep't of Commerce Internet Policy Task Force, White Paper on Remixes, First Sale, and Statutory Damages, UNITED STATES PATENT AND TRADEMARK OFFICE (Jan. 28, 2016) http:/www.uspto.gov/learning and resources/ip policy/copyright/white paper remixes firstsale and statutory damages [https:/perma.cc/33UU D8EF] (recommending amending the Copyright Act as to statutory damages) Maria A. Pallante, Register of Copyrights, The Register's Call for Updates to U.S. Copyright Law, U.S. COPYRIGHT OFFICE (Mar. 20, 2013) http:/copyright.gov/regstat/2013/ regstat03202013.html [https:/perma.cc/NLB7 XZ5G] "My message is simple. The law is showing the strain of its age and requires your attention." 9. See, e.g. Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Art Communities, COLLEGE ART ASSOCIATION (February 2014) http: www.collegeart.org/pdf/FairUseIssuesReport.pdf [https:/perma.cc/FTB7 WQ8C] see also Bouchat v. Balt. Ravens Ltd. P'ship, 737 F.3d 932, 944 (4th Cir. 2013) as amended (Jan. 14, 2014) 10. 4 MELVILLE B. NIMMER DAVID NIMMER, NIMMER ON COPYRIGHT SS 13.05[A][1][B] (2002) (quoting Michael J. Madison, A Pattern Oriented Approach to Fair Use, 45 WM. MARY L. REV. 1525, 1670 (2004) 11. See, e.g. Tushnet, supra note 2, at 875 "[F]air use provides enough certainty that ordinary people can go about their day to day business using common sense, just as they can usually do so with respect to other incompletely specified legal regimes " 12. COLLEGE ART ASSOCIATION, supra note 9, at 5. 13. Cf. COLLEGE ART ASSOCIATION, supra note 9 at 7 9. 14. COLLEGE ART ASSOCIATION, supra note 9, at 9. SITES, FAIR USE AND THE NEW TRANSFORMATIVE, 39 COLUM. J.L. ARTS 513 (2016) 516 COLUMBIA JOURNAL OF LAW THE ARTS [39:4 Progress of Science and the useful Arts"15 is hindered when fair use is too confusing.16 Inconsistency in the case law applying fair use does the doctrine's predictability no favors. Accordingly, this Art