Transformativeness Is Important! But It Doesn’t Limit Fair Use
Transformativeness Is Important! But It Doesn’t Limit Fair Use
Transformativeness Is Important! But It Doesn’t Limit Fair Use

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    When it comes to fair use,
    “transformativeness”—whether the use adds something new to the original—is important
    to protect, but it’s not the whole story. 
    As Congress considers the scope of fair use, recent Second Circuit case Swatch v. Bloomberg is a reminder that fair
    use protects more than just transformative uses.

    The question of what makes a
    work “transformative” was front and center at Tuesday’s copyright reform hearing on the scope of fair use.  Five witnesses testified, among them author
    Naomi Novik, who developed her skills by writing fanfiction and is now a
    bestselling author, and singer-songwriter David Lowery.  Novik testified
    that by protecting transformative works, fair use creates a space where artists
    can build their own original expression.  But Lowery disagreed, testifying
    that in his view fair use should not protect artists who create new works like remixes
    or mashups, meaning that they should be required to pay for licenses, and
    therefore to ask for permission—despite the fact that many such works are

    Given all this talk, it’s
    worth remembering why courts consider
    transformativeness in fair use cases in the first place.  After all, section 107
    of the Copyright Act, which codifies fair use, doesn’t mention the word at
    all.  Section 107 lists four nonexclusive
    factors courts must consider when deciding fair use:  (1) the purpose and character of the use; (2)
    the nature of the copyrighted work; (3) the amount and substantiality of the copyrighted
    work used; and (4) the effect on the potential market for the copyrighted work.
     It also gives examples of purposes that may
    be fair: “criticism, comment, news reporting, teaching (including multiple
    copies for classroom use), scholarship, or research.”

    Rather than the statute, the
    term “transformative” comes from an influential law review article by Judge Pierre Leval.  He
    pointed out that we grant copyright protection in order to benefit the public
    by encouraging creativity, and fair use serves this goal when it protects transformative
    uses that add value to the original.  The
    Supreme Court picked up his view in Campbell v. Acuff-Rose Music, Inc., holding that fair use’s first factor asks whether
    the use “supersedes the objects” of the original work or rather is
    “transformative,” meaning that it “adds something new, with a further purpose
    or different character, altering the first with new expression, meaning, or

    Transformativeness is
    important, and it’s working.  For
    example, it was at the core of a large number of fair use victories last year, in which courts recognized that uses ranging from quoting and repurposing in film and
    art, to Google Books’ library digitization project, and more were fair.

    But transformativeness isn’t,
    and can’t be, the whole story when it comes to fair use.  As the Supreme Court noted in Campbell, transformativeness “is not
    absolutely necessary for a finding of fair use.”  This is because, as Judge Leval’s article put
    it, transformativeness is the primary indication that a use of copyrighted
    material is “justified” because it advances copyright’s interest in creativity—but,
    to extrapolate, transformativeness is not the only indication that a use is fair.

    Using a copyrighted work for its
    original purpose, without physically altering or adding to it, can also serve copyright’s
    interest in benefitting the public.  The
    statute gives an example: section 107 lists
    creating “multiple copies for classroom use” as one of its paradigmatic fair
    use purposes because we value teaching, even though reading a photocopy of a
    literary work in class likely puts it to the same purpose its author intended.

    Swatch v.
    , a Second Circuit case
    that was decided on Monday, illustrates why fair use doesn’t require “transformation.”  At issue in the case was a conference call
    that Swatch held with a large group of investment analysts following the
    release of its earnings statement. 
    Bloomberg posted a recording of the call to its financial reporting
    service despite Swatch’s request that the call was not to be recorded.  Bloomberg posted the entire call, without
    editing or commentary, for roughly the same purpose as Swatch: sharing
    information with the investment community. 
    If fair use required transformativeness, Bloomberg might have been out
    of luck.

    But as the Second Circuit observed,
    although transformative uses are “more likely” fair, “some core example of fair
    use can involve no transformation whatsoever.”  Classroom photocopying is one example.  News reporting “and analogous activities” are
    another, because “the need to convey information to the public accurately may
    in some instances make it desirable and consonant with copyright law for a defendant
    to faithfully reproduce an original work rather than transform it.”  This, the court found, was one of those
    cases.  By reproducing the call exactly,
    Bloomberg had shown its subscribers “how
    Swatch’s executives delivered their earnings results—information above and
    beyond what a transcript could convey.   This served the “important public purpose” of
    making financial information about Swatch available to American investors.

    Section 107’s first factor directs
    courts to consider the “purpose and character” of the use.  Transformativeness helps show that this favors
    fair use, but so does the fact that the use serves a public interest like those
    listed in the statute—“criticism, comment, news reporting, teaching . . . ,
    scholarship, or research.”  Thus, the Second
    Circuit didn’t even need to decide whether Bloomberg’s use of the recording was
    formally “news reporting” to find that it served the public interest in
    disseminating information.  Because “copyright law’s goal of promoting the Progress of
    Science . . . would be better served by allowing [Bloomberg’s] use than
    preventing it,”
    the Second Circuit found
    fair use, and affirmed the district court’s grant of summary judgment for defendant

    Although transformative works
    are important and essential to protect, focusing exclusively on
    transformativeness when considering the scope of fair use risks losing sight of
    the reason we have the doctrine in the first place. Swatch is a reminder that fair use exists to ensure that copyright
    law continues to serve the public interest by incentivizing creativity and access
    to information.  As Congress considers
    the scope of fair use, it should remember that, as Professor Peter Jaszi reminded
    them on Tuesday, the doctrine’s flexibility is part of its strength.  And an important part of fair
    use’s flexibility is the ability to protect even non-transformative uses like the
    one in Swatch.